text:
    (Sixth Circuit — Sandusky Co., O., Circuit Court
    Oct. Term, 1894).
    Before Haynes, Scribner and King, JJ.
    THE NEW YORK, CHICAGO & ST. LOUIS RAILROAD CO., v. ANNIE KISTLER.

      Speed of R. 11. train at crossing—

    (1.) A railroad company is not bound to bring its train to a stop- or to slacken its speed when a person is seen crossing or about to cross the railroad track at its intersection with a highway or street, butgmay presumelthat the traveler will take all proper precautions to avoid injury.

      Absence of warning-post at crossing as proof of negligence—

    (2.) The statute requires railroads to maintain a warning-post at railroad crossings,but, unless the plaintiff averred as a ground of negligence that the sign was omitted, he cannot insist up- " on it as a substantive cause of action. However, if a party is-acquainted with the crossing, the absence of the warning-post is not available as a proof of negligence.

      Negligence of driver can nottbe attributed to other person in vehicle.

    (3.) A charge that if thejfather, who was driving the team, was guilty of-contributory negligence which would bind the father,it would bind"the plaintiff, the daughter, who was traveling-with him, is"in conflict withj the rule laid down by our Supreme^Oourt.

      Error to the Court of Common Pleas of Sandusky county..
   Scribner, J.

This is a case in error pending in the circuit court of ' Sandusky county, in which the plaintiff in error, the railroad company, seeks to reverse a judgment obtained by Miss Kistler, the defendant in error, against the railroad, company. The case was heard by us at Fremont - in June ast. The record is very voluminous, occupying between 500 and 600 pages of type-written matter-. It has been a> very great labor to examine it with the care that its importance and justice to the parties demanded. We have not' been able to give it such examination — complete our examination of the record — until quite recently, but we have gone carefully through it, and I shall now proceed to announce* the conclusion at which we have arrived.

The plaintiff below, Miss Kistler, filed her petition in the court of common pleas of Sandusky county on the 10th of November, 1892. She alleged the corporate existence of the railroad company, set forth the county through which-the line of railway passed, and alleged that

“On or about the 2d of June,1892,she was a traveler upon one of the highways of that locality in a vehicle drawn by two horses; that while so traveling at a point at or near a place where said railroad crosses said highway, defend-ant, by its servants, ran one of its locomotives and a train of cars thereto attached upon said railroad, nnd negligently- and carelessly approached said highway with said locomotive and train of cars at a high, immoderate and dangerous rate of speed, and negligently and carelessly omitted to give proper and sufficient signals or warning of the approach of said locomotive and train of cars to said crossing, and of the existen-e of said crossing, and negligently and carelessly allowed and maintained obstructions to a proper view of' said train, locomotive and railroad, and negligently and carelessly operated and handled its said locomotive and train-of cars; by reason whereof the plaintiff, while so traveling-in the crossing of said railroad upon said highway, and being in the exercise of due care and without fault or negligence on her part, was violently struck by said locomotive ¡and train, aud thereby dangerously, seriously, and perman■ently bruised, injured, scarred, and disfigured, and thereby received unsightly marks about her head, and was thereby •made very sick for a long time.”

She prays judgment for $30,000 for the injuries.

The .railroad company filed its answer on the 27th of February, 1893. It admitted the corporate existence of the •defendant; that it owns and operates the line of railway described in the petition; and for want of knowledge it denies •all the other statements contained in the petition. And ■for ground of defense the defendant further says:

‘ ‘If the plaintiff was injured in any degree or respect by a train upon defendant’s railroad,the defendant avers and says that such injury was brought about and caused by the negligence and want of care of the plaintiff and those to whom she entrusted her personal safety it the time, in approaching and crossing said railroad; and that the line of defendant’s railroad at the place where said plaintiff was crossing the same, was visible for a long distance either way upon the side of the railroad track, along the highway which she was traveling; that there was nothing except the want of •care and attention, and failure to look and listen, on the part of the plaintiff, that could possibly prevent her hearing or seeing any train approaching from either direction, ■as she approached said railway crossing on the highway; and that on the occasion in question, if she was injured in any respect, as she alleges, it was because she failed, neglected, and refused to exercise her faculties of bearing, seeing and looking out for approaching trains, which faculties, the defendant alleges, she then had and possessed to an ordinary degree, and to the extent that people have and possess such faculties generally. Wherefore it is alleged that plaintiff was guilty of contributory negligence.”

The plaintiff in her reply to defendant’s answer, filed January 22, 1894, said that she denied negligence or want of care upon her part, or any one with whom she entrusted (her personal safety. She denied also that, the defendant’s railroad at the place named was visible for a long distance either way, as alleged; denied that she (plaintiff) negli.gently exercised the ordi ary faculties of seeing and hearing in looking out for an approaching train; denied that she negligently exercised ordinary care in approaching said railway •or crossing, or that she was guilty of'any negligence which contributed to her injury.

The case was tried to a jury, and on the 18th of January, 1894, a verdict was rendered for the -plaintiff against the railroad company for $12,000.’ The railroad company thereupon filed its motion for a new trial, alleging as grounds of the motion, 1. Excessive damages, 2. Verdict not sustained by sufficient evidence and contrary to law. 3. Error of law occurring at the trial, excepted to at the time; also that the court admitted testimony offered by the plaintiff and objected to by defendant, and excluded testimony -offered by the defendant; and error in the charge of the •court in giving certain requests. On the 17th of February, 1894, the motion for a new trial was overruled, and judgment was rendered for the plaintiff below on the verdict, which was excepted to. A bill of exceptions was taken by the defendant, and filed March 17th or 27th — the record ■states it both ways — 1894. The petition in error was filed in the circuit court on April 2d, 1894. The errors assigned ■are substantially those set forth in the motion for a new trial.

The line of the defendant’s railway at the locality in ■question, a3 appears from the record, crosses what is known as the county line road in such manner as to form an acute angel at the place of crossing,

There was no sign-board at this crossing, giving notice of the existence of a railroad crossing. The county line road runs directly east and west, the railroad in a northeasterly and southwesterly direction over the county line road crossing. A public road known as the Sand Ridge road crosses the county line road and the railroad in a diagonal manner,, this crossing being in a direction a little east of north. The-effect of these several crossings is to leave a small piece of' land of triangular shape lying between the county line road,, the Ridge road, and the railroad. The distance from the-railroad and the county line road crossing, along the county line road to the ridge road and county^ line road crossing, is 202 feet; from the last named point to the ridge road and railroad crossing, along the ridge road, is, as stated upon a plat which was furnished us,’ 135 feet, but as stated by one of the witnesses is 166 feet. From this point southwesterly along the railroad to the railroad and county line road crossing is 346 feet. East of the ridge road crossing the distance between the county line road and the line of railroad-increases, owing to the fact that while the county line road-proceeds in a direct line east and west, the railroad bears-off from the highway in a northeasterly direction. Lying-east of the crossing is a piece of woods through which the-line of railway passes. The distance from the crossing where-the accident in question occurred, to this piece of woods, is-estimated by some of the witnesses at from 75 to 80 rods;: one witness fixing it by actual measurement at 94 rods, or 1551 feet. The latíds in the locality in question are described as being somewhat rolling in their character, possessing some inequalities of surface, but not to any considerable extent. There was nothing on the lands lying between the county line road and railroad and the woods on-the east to obstruct the view of the railroad between those-points, except some trees and bushes growing on the easterly side of the ridge road. There were two trees, one a wild cherry tree, standing in or near the angle formed by the ridge road and railroad crossing; the other was a locust, growing near the ridge road on the east side, and several feet south of the cherry tree. Southerly of these trees, and-along the easterly line of the ridge road and railroad some' ■bushes were growing. There was some controversy as to whether or not the cherry tree,or some part of it, was upon the lands of the company. The other tree and bushes were upon the lands of other parties. The surface of the land upon which the ridge road is located and constructed ascends somewhat in its progress from the county line towards the railroad, so that as the latter is approached a slight cut .is made, leaving a low embankment on each side of the traveled way. From this elevations the ground gradually slopes off towards the south and southwest.

On the 2d day of June, 1892, about 7 o’clock in the morning, Annie Kistler, the plaintiff below and the defendant in error here, in company with her father, David Kistler, was traveling along the county line road already described to the westward towards the railroad crossing. They were in a covered buggy. The buggy top was up; the side and back curtains were down, the back curtain, however, swinging loose. The buggy was drawn by two horses. The father was advanced in years, and quite deaf. He was driving. They reached the crossing, and while in the act of passing over it, the horses and conveyance were struck by a locomotive engine drawing a freight train with a caboose attached- The father was killed, and the plaintiff severely injured. The action below was brought to recover damages for the injuries so sustained by her, as shown in the petition already referred to, it being alleged that the accident resulted from certain negligent acts and conduct of the defendant already mentioned, to which I shall now proceed to call more particular attention.

First. The first charge of negligence contained in the petition is as follows: “The defendant negligently and carelessly approached and crossed said highway (the county line road) with said locomotive and train, at a high, immoderate, and dangerous rate of speed.” The gravamen of the ■complaint here being that the railroad company, by its serv ants, approached the highway crossing with its train at a.high and immoderate rate of speed.

The testimony of some of the witnesses on the part of the plaintiff tends to show, so far as it may be relied upon, that the train was approaching that crossing at a speed of.' from forty to fifty’miles an hour; but they were inexperienced persons in such matters, and their judgment was verj’ little to be relied upon in such a matter; and the testimony of some of the witnesses for the plaintiff, upon that point, was for this reason excluded by the court. The railroad men testified that the train was going at from twenty to twenty-five miles an hour. We judge, looking to the whole testimony, that it was probably going at about thirty miles-an hour at the point in question.

Now it may be important to know what .duty is devolved upon railway companies, and what rights the traveler may exercise in traveling or passing along a bigwhay, especially a country highway as this was. In 2 Shearman & Redfield on the Law of Negligence,4th ed.,sec. 463, the rule is thus-stated:

“The rights of a traveler on the highway, at a point where it is crossed, on a level, by a railroad, are subordinate to those of the railroad company, so far as to require the traveler to give way to any train which is in sight or1 hearing, though not in such a sense as to give the company a right to block up the highway; for its right is only given for the purpose of travel, not of storing its cars or-goods. Both parties are, however, equally bound to use ordinary care — that is, such care as a prudent man could usually take under similar circumstances: the one to avoid committing, and the other to avoid receiving injury. For-this purpose, it is the duty of the engineer to keep watch for travelers, and, upon approaching a highway crossing, it is generally his duty to give sufficient signals of the approach of the train, by ringing his bell, sounding the-whistle, displaying headlights, and other sufficient light at night, or otherwise, as may be usual, and also to approach, a crossing which be knows to be continually thronged with travelers, and unprotected by the company, at such a rate-of speed as will enable him to check the train if necessary. More than this cannot be required, unless the engineer has actual notice of special circumstances demanding special' care, such as the presence of any person or thing upon the track, or the like, or unless the crossing is so made that travelers on the highway can neither see nor hear the train- or its signals in time to escape danger, in which case he-must take such further precautions as he reasonably can. An éngineer, on preceiving that any one is on the track, ought to blow his whistle, and to make any other signals in-his power to give warning of the danger; and his failure to-do so at a public crossing is strong evidence of negligence on the part of the railroad company. He ought also to-slacken speed, unless well assured that it is unnecessary. But ah engineer is not hound to lower his speed on approaching ordinary highway-crossings in the open country, where travelers only pass occasionally; and still less at farm-crossings. But if the view of the track is obstructed at such crossings, it may be negligence not to do so. If' the engineer sees persons or teams approaching or waiting to cross the railroad, he is not bound to anticipate that they will attempt to cross in view of the train; and, therefore, he is not required to check his speed so much as would be necessary to enable them to cross in front of him.”

In a note there is this statement of the rulings made in a-case in New York,and one in New Jersey:

“It is not any want of ordinary care for a train of cars-to approach a crossing at its usual speed, although there-is a carriage approaching,or standing near it. (Warner v, N. Y. Central R. R. Co. 44 N. Y., 465; Telfer v. Northern R. Co., 30 N. J. Law, 188.)” ■

Now the locality here falls within the description mentioned in this language of the text:

“An engineer is not bound to lower- his speed on approaching ordinary highway-crossings in the open country, where travelers only pass occasionally; and less still at farm? crossings.” .

A case in 113 Indiana contains quotations from quite a • number of authorities bearing upon this question, The case is Ohio & Miss. R’y. Co, v. Walker, 118 Ind., 196, The ■fifth paragraph in the syllabus reads as follows:

“A railraod company is not bound to bring its train to •a stop or to slacken its speed when a person is seen cros■sing, or about to cross the railroad track at its intersection with a highway or street, but may presume that the traveler will take all proper precautions to avoid injury, and it is -error to refuse to so instruct the jury in a proper case.’’

On page 202 and 203 of the volume, in the opinion of the court, there is a statement of the rule as established by the authorities, according to the view taken by the court:

“In a sense, the rights of the traveler .and the railroad company upon a highway crossing are equal. Neither has an exclusive right to use it, and both are bound to do what the law requires of them. The right of the company is, however, superior in one respect,and that is, the right to the priority of passage. Of necessity this must be true, ■since it can not be legally possible that trains must be brought to a halt at every highway crossing in order to ali'low travelers to cross But we need not discuss the question, for it is put at rest by the authorities.’’

And the court here cite the authorities.

“A traveler who approaches the highway is bound to know that he must yield precedence to the trains, and that ¡he has no right to expect them to slacken speed, much lees to stop and yield him priority of passage. This principle >is settled beyond controversy.”

And other authorities are cited,

“Mr;Beach says”, the court proceeds, “of a traveler about to cross a railway track: ‘He must assume that there is •danger, and act with ordinary prudence and circumspection upon that assumption.’ Many cases are cited by this -author declaring the duty of the traveler, and asserting that the company is under no obligation to stop its trains •or to slacken their spped.
§“Mr. Wood says: ‘The law does not require the speed of trains to be slackened on approaching the crossing of a public highway in the country wheh a team is .seen approaching it.’ 22 Am. R’y. Law, 1330.
“This rule extends to persons on the track where there is nothing to indicate that they are not at liberty to leave it at will, if, indeed, it does not go much further. We again quote from Mr. Beach: ‘It is to be presumed that a person of mature years will not stand still upon a railway track and deliberately suffer himself to be run down. It is also pre-sumed that all men are in the possession of their senses; and will exercise ordinary diligence in times of danger to take care of themselves. It is in accordance with these assumptions held, that when an engineer of a locomotive engine sees ahead of hini a man upon the.track, he may presume that the man possesses ordinary capacity, and that he can see, and hear, and reason from cause to effect, and that, as a train approaches him, he will step aside and not be run over.5” •

In the New Jersey case,cited in 2 Shearman & Redfield, ■ — ■ 30 N. J. Law, 188 — the chief justice in his opinion of the case, at pages 194 and 195, describes the topography of the locality where the accident there in question occurred. He says;

“The topography of the place clearly shows that persons about to cross may, with ordinary care, always ascertain when a train is approaching, and thus avoid a collision.
“Whether the whistle was olown and bell rung upon the approaching engine, is immaterial, if the boys Knew, or with ordinary caution might have known in . time to avoid the collision, that the train was approaching; but if it were material, I think the decided weight of the evidence, indeed all the reliable evidence in the case shows' that the whistle was blown and bell rung as required.
“The negative testimony of the occupants of the barroom at the time of the accident, that they did not hear it, is not entitled to much weight; accustomed as they were to the sound, it would be strange if they recollected hearing it. The testimony of one credible witness, that he did hear it, is far more reliable, and should outweigh theirs.
“Nor does the evidence show any ground for the conclusion that there was a neglect of proper means to avoid the collision, as soon as its danger became apparent. Every means was taken to arrest the progress of the train, when the engineer saw the attempt to cross in front of it.
“Where common highways intersect, the trains have t.he right of way, as against ordinary carriages; it is the duty of the latter to keep out of the way of the former.
“Although the engineer saw the boys approaching the crossing while yet at such a distance as not to indicate their ignorance of the ccming train, it was his right to suppose they did not mean to attempt to cross before the train; and if he acted upon that impression, it was not negligence or want of ordinary caution on his part, although the supposition proved to be groundless.’'

In Maurer’s case, 21 Ohio St., the general proposition is stated by the court that the traveling public and the railway companies have equal rights at the crossing of a highway by a railroad; but we do not understand the court to mean by that that the traveler upon the highway either ought to or has a right to compel the railway company -to stop its trains and let him pass on the highway and across the track, but that according to the ordinary doctrine in such cases, the traveler is bound to look out and ascertain whether a train is coming, and if with ordinary care he ascertains that it is coming, that he must wait, if there be danger in crossing, until the train passes.

The second charge of negligence contained in the petition is as follows:

“The railroad company negligently and carelessly omitted to give proper and sufficient signals or warning of the approach of said locomotive and train to said crossing, and of the existence of said crossing.’’

The statute of the state provides that the managers of railroad trains approaching a railroad crossing shall blow certain signals,giving notice that the train is approaching, and shall ring their bell also,giving notice ;and the statute requires that this shall be done while the train is at least 80 rods distant from the crossing,and not more than 100 rods distant. One of the controversies in this case was as to whether or not these signals were given, and upon that point testimony was introduced in either side. The plaintiff in her testimony gave an account of the transaction as it occurred. She is asked:

“Q, Now do you remember having any talk with your father on the road about anything while going westward on the county line road, after you turned there at Lay’s? A. All the talk was, when we went along there by Niles’, he said we was close to the railroad track, and I should look out for the cars.
“Q. Do you know whether that was where the woods are or not on the other side? Were the woods on one side of you there? A. There was woods there; I couldn’t tell you whose it was, but we was going along there when he said it..
“Q. What did he fell you? A. We was close to the railroad track, and I should look out for the cars.
“Q, What did you db? A. I held up the curtain behind, and I looked out as we was going along.
“Q. You put your hand around behind him, did you, you mean? A. Yes, sir, I did.
Q. Like this? (Indicating.)A Yes, sir.
“Q. And moved the curtain? A. Yes, sir.
“Q. Backward, or how? A. Back so I could see out.'
“Q. Did it give you a good view at the side and backward? A. Yes, sir.
“Q. Toward the railroad ? A. Yes, sir.
“Q. Toward the north. Did you look across? A. Yes, sir: I did,
“Q, Did you listen? A. Yes, sir, I did.
“Q. How'was your hearing át that time, Annie? A. Good.
“Q. Had you ever had any trouble in hearing ordinary sound? A. No.
“Q. Did you ever have any trouble about it, to speak of? A. No.
“Q. Your hearing is good yet, is it? A. Yes, sir.
‘‘Q. Did you hear any sound of any approaching train then, when you were there? • A. No, I did not.
“Q. Or see any train approaching? A. No.
“Q. Or any steam ? A, No.
“Q. That indicated a train? A. No.
“Q. Now,in passing along from there westward, do you remember any further things you did in the way of looking out? A. I saw the oil tanks.”

These oil tanks were located between the ridge road and railroad crossing and the county line and railroad crossing, to the north of the railroad, a short distance.

‘‘Q. Now, in passing along from there westward, do you remember any further things you did in the way of looking out? A. I saw the oil tanks.
‘‘Q. Did you know where you were when you saw the oil tanks? A. No, I saw them, but I didn’t now where I was then.”

Further on, she says:

”Q, Have you any recollection of coming to the ridge road ? A, Yes, sir. ’ ’
That, it will be remembered, crosses the railway 202 feet east of the railroad and county line road crossing..
‘‘Q. Do you remember anything that happened after that at all? A. No, I do not.
“Q. Do you remémber seeing a train of cars any time that day? A. No, I didn’t see them,
‘‘Q. Do you remember being struck with the cars at all? A. No, I do not.
‘‘Q. Do you remember hearing any soufrid of a whistle? A. No, I do not,
‘‘Q. Or bell? A. No, I didn’t hear any at all.
“Q. Before the collision or at the time of it? A. No, I didn’t hear any at all.
‘‘Q. If you did you don’t know it now? A, No.
”Q. Do you say you looked out more than, once as you came along there from Niles? A. Yes, sir, I did. I looked out several times; I couldn’t tell you how many times I looked, though.
“Q. Tell us just what you did as you were going along? A. I kept raising this curtain and looking out.
“Q. Was your rig making very much noise? A. No.
“Q. I suppose ¿here was some rattle about the oldbugy? A. Not much.
“ Q A sandy road? A. Yes, sir.
“Q, And the two horses, were they on a trot or walk? A. Oh, they trotted along about like horses go.
“Q. An ordinary gait? A. Yes, sir.
“Q. Have you any knowledge of one of the horses trying to run at any place? A. No.

All this occurred, as detailed by the plaintiff, before the horses and carriage had reached the ridge road crossing. The plaintiff testifies that after passing the ridge road, she has no recollection whatever of what occurred: she don’t remember of being struck- — she remembers nothing. All that occurred between those two points is to her a perfect blank. And the statement in substance made by her is this: that the effect of the accident was to deprive her of all memory or consciousness of what had taken place between the ridge road crossing, 202 feet from the railroad crossing at the county line road. Upon cross-examination she was persistently inquired of if she didn’t remember what occurred between those points, and she says not: and on re-examination she repeats her statement that she has no memory of anytbinsg that transpired between those points. She says, however, this, in the course of her testimony:

“Q. Now did you see the railroad — -I mean the railroad now, not the train- — when you got past the woods there, just beyond Mr. Niles’ ? A. You mean where we had to cross?
“Q, No, off to the right there, A, Yes, sir.
“Q. In the field? A. Yes, sir.
“Q. You could see the track off to the north, could you not ? A. Yes, sir. ”
On page 260,in her re-examination,she there testifies:
“Q. I understand you to say you don’t remember anything that occurred after you passed, the ridge road — what you say you don’t remember anything about? A. After I crossed the ridge road ?
”Q. Yes. A. No.
‘‘Q. You don’t remember whether you saw oil tanks, whether you saw the railroad, or whether you saw anything or heard anything? A. No.
“Q, You have no recollection about that? A. No.”

From this statement it follows, so far as the plaintiff is concerned, she is unable to give any testimony — she has no knowledge. — of what transpired between those two points, As the father was killed in the accident at the time, as a matter of course, so far as the occupants of the carriage are concerned, no light is thrown upon the occurrences between those points, One of the plaintiff’s witnesses is John Dymond, He testiSes concerning the transaction:

“Q. Do you remember of the morning of June 2, 1892, at the time Mr, Bustler was killed? A. Yes, sir.
-Q. Where were you at that time? A. I was about ten rods north of the oil station, in the field next west of the ridge road.
”Q. What were you doing? A. Dragging corn.
”Q. In the field? A. Yes, sir.
‘‘Q. Did you notice the train that morning? A. Yes, sir.
‘‘Q. When did you first notice it? A. When it was going out along them woods south of the track, east of the crossing.
“Q. Before that time did you bear the train coming anywhere along? A, No, sir.”

This locality, the woods south of the track and east of the crossing, was a point about ninety four rods east of the railway crossing and the county line crossing,and it was at that point he says that, he first saw them.

“Q. Let me ask you if you remember seeing the train at the time it got there at the oil station? A. Yes, sir.
‘‘Q. Did you hear a whistle sounded that morning?
&. Yes, sir.
‘‘Q. Where was the train when they sounded the whistle? A.' Right on the ridge crossing, or about that place.
“Q. What sort of a whistle did they give — describe it to the jury? A. It was one long, sharp whistle, and a short one.”

His opinion is that the train was running about forty miles an hour, and he fixes the locality where the whistling occurred at the ridge crossing,which is 346 feet northeast of the railroad crossing. If the testimony of the above witness is correct, the whistle sounded when the locomotive was 346 feet from the crossing. If the train was running forty miles an hour, as the witness estimated,it would have taken the train about six seconds to pass from the ridge crossing to the county line road; if the train was running at thirty miles per hour, it would have taken it about eight seconds.

Norman D. Sharp was also a witness for the plaintiff.

He is inquired of as to the rate of speed the train was traveling at, when he gives an opinion fixing it at fifty miles an hour in his judgment; but this statement of the witness was afterwards excluded by the court. On page 82, in the course of his testimony, he testifies:

‘‘Q. You may state whether you can ordinarily hear whistles sounding between the ridge road crossing of the Nickel Plate on your place? A. Yes, sir, I could.
*‘Q. You can hear them ordinarily, can you? A. Yes, sir.
“Q. The whistling of locomotives on that , railroad ? A. Yes, sir, I can hear them.
“Q. You may state whether you heard any whistles sounded from the time they passed your house westward? A. Well, I don’t remember whether I heard any or not; but I could hear them if I was listening or noticing.
‘‘Q. You don’t remember whether you heard any? A. I don’t remember whether I heard any or not.
‘‘Q. You have no recollection of hearing any, you say? A, 1 don’t remember of bearing any.” ■

And Geoge Lee:

“Q. How far do you live from Oil Station? A, About eighty or eighty-five rods.?’
Showing the diagram to the witness, and inquiring of him about that, he says he lived northeast from the oil buildings. That was the land on which young Dymond, whose testimony I have read, was at work.
“Q. Where were you on that morning when this accident occurred? A. About twenty rods north of the track.
“Q. Which side of the ridge road were you on? A. I was on the southeast side of the ridge road, between the railroad and the ridge road.
“Q. Between the ridge road and therailroad? A. Yes, sir.
“Q. Do you own land in there? A. I do.
“Q. What is the shape of the field you were in? A. It is a three-corner field, very near.
“Q. Bounded on the south side by what? A. The railroad.
“Q. And on the southwest by what? A. Well, on the north side by the ridge road and the fence.
“Q, The ridge road that runs to Galetown from the oil station down this wav. You were in that field, southeast of ridge?- A. Yes, sir.
“Q. How far from the railroad track? A, Not over twenty rods.
“Q. What were you doing? A. Planting corn.
“•Q. Did you know when the local freight came along that morning going west ? A. I did.
“Q. About what time? A. Well, I should think it was about half-past 7, or such a matter — 'between 7 and 8.
“Q. Do yo know of the killing of Mr. Kistler and the injury of his daughter? A. I heard of it about a half an hour after the accident.
“Q. Now, on that morning,did you see the train come along which struck them ? A. I did.
“Q. Were you then in this field you described? A. Yes, sir.
“Q. What first called your attention to the train? A, Jt was the rattling of the train,
“Q. Did you look up at it? A. I did.
“Q. Which way from you was the train then? A, It was east of me.
”Q, And coming towards you — coming west, was it? A. Yes, sir.
“Q. How far east of you was it when you first saw it? A. Oh, it must have been —oh, I should think a hundred rods anyhow, maybe more.”
His opinion is it was going about 40 miles an hour.
‘‘Q. Can you see as far west as the ridge road, from where you stood, along the railroad? A. Yes, sir, I could.
‘‘Q. What kind of signal did you hear blow there? A. A sharp whistle — two sharp whistles, I think.
“‘Q. And did you hear any other signals that you remember of, that morning, made by that train there, before it came to you, or after it passed you? A. I think not.”

This is another witness who testifies that the train whistled at the ridge road crossing.

William B. Lay was also a witness for the plaintiff. He was plowing in a field about twenty rods from the county line road, and he was facing east during the collision. He heard the engine at about the ridge road crossing. One of the horses, he says, was.galloping, the other at a fair trot. The train was running fast. John Bowers was working , at the back end of a farm about forty rods from the railroad track. He first saw the train about two miles east — or he first heard the whistle two miles east — of the county line crossing. He heard the whistles after the train had passed a certain distance.

Mr, Frank B, Allen was the telegraph operator. He was located at the oil station, about thirty feet from the crossing of the Nickel Plate track in front of the mail crane, north of the railroad track, and facing it. His office door was open. Saw the train pass. Don’t remember hearing any whistles sounded; unable to say whether it tooted in front of office; don’t remember whether it whistled or not. When he first saw the team, they were half way between ridge road crossing and county line crossing. He first saw the train when about opposite the cherry tree. This cherry tree stands in the angle formed by the ridge road crossing and the railroad. He says that the deceased looked out. It must have been then when they were right along there between those two points. That is the principal testimony on the part of the plaintiff touching the transaction. On the part of the defendant, a man named Jacob Baker, who was a passenger on the train, sitting in the caboose at the time, states that be was on the train. Observed the engine whistle three or four times. He saw some oil tanks about the time he heard the whistle, looked out of the window and saw some oil-tanks, and remarked that he didn’t know that they had got along so far. This time the whistle sounded. Seeing the oil tanks very soon after hearing the whistle, would indicate that the whistle sounded somewhere near the ridge road, crossing, as stated by some of the plaintiff's witnesses. He did not hear the bell,

Joseph Bracht, the engineer in charge of the locomotive at the time the accident occurred, testifies in substance with regard to the accident that he was on the engine in charge of its management, and, as his duty required, was not looking to the left of the road where these people were coming along, but had his eyes down the line of the railway along the right side of the train. He testifies positively that he whistled as the train left the woods some ninety rods away; gave the usual signals for a crossing, two long and two short blasts; and the fireman, who was sitting by, rang the bell, and kept the bell ringing right along. He was in the strict performance of his duties, as he states, with his eyes, on the track before him, and he did not see these people nor this carriage, nor hear anything indicating that there was any carriage passing along there, until he was upon them — perhaps within ten feet of them — and at a time when it was absolutely impossible to in any way check the speed, of the train.

Thomas H. Bell was the conductor. He testifies also that the crossing signal was blown just at the point indicated by the engineer; that the bell as rung by the fireman at that time, and that he was on duty in his usual position. And he says further that the buggy was just coming on the county line and ridge road crossing when .he saw them — ■ that is, they were at the point where the plaintiff says tjpat she lost all consciousness and all knowledge of what transpired from that time forward, The conductor states that the train was then about ten car-lengths east of the ridge road crossing.

Just at that point be saw that'some one looked out of the buggy. The plaintiff in her testimony states that just at that point her father looked out, and looked around the buggy to look back. The conductor states that he had no knowledge or thought, or suspicion, that thése parties would attempt to cross the railroad ahead of the train, which was in full view.

Henry Beckstein was the fireman. He testifies that he rang the bell, as testified to by the other employes; that as the train approached the county line crossing he was seated on the left side of the locomotive, facing the track. His position as fireman was upon the leftside of the engine, He says that he was seated there, and he didn’t see the buggy until just as it approached the crossing.

“Q. How near were you to the crossing (that is the railroad crossing and the county line road crossing) when you first saw that? A. Well, I think they must have been in' the neighborhood of forty or fifty feet; may be they was further off or not that far, I could not really say that,
“Q. Did you see anybody in the buggy? A. No, sir, I did not.
“Q. What speed was the buggy going? A. Why, it seemed to me on a slow trot — ordinary trot.”

Further on be testifies that he first saw the man in the buggy,' Mr. Kistler, when he was 150 to 200 feet from where it struck. That would bring him about the ridge road crossing,

Forest, the head brakeman, was seated with the fireman on that side of the locomotive, and he did not see these people coming along in the buggy until they were almost upon them.

Townsend, the rear brakeman, offers a written statement which is received as testimony here, and his testimony is substantially the same as that of the other witnesses.

George Haskell was an extra brakeman, He was sitting on the cupola when he first saw the buggy. His statement is that about the time the carriage reached the ridge road crossing he saw a man reach his head out from behind the buggy curtains, and look back, and he says that he had some suspicion or thought at that time that they intended to endeavor to get across the railroad, because, he says, that somebody in the buggy raised and slapped the line upon the horses, and the horses started to go faster at that point. The horses near the railroad broke into a sort of a gallop. He corroberates in that regard the testimony of the telegraph operator, who says that at the time he saw them, about midway between the ridge road crossing and the railroad crossing, the off horse was going on a gallop.

That is substantially the testimony upon the facts connected with this accident.

There is an allegation in the petition to this effect: That the railroad company negligently and carelessly omitted to give the proper signals, and also neglected to give warning of the existence of the railroad crossing. The statute,section, 3333, requires railroad companies to place at railroad and highway crossings a sign, indicating that there is a crossing there. We are somewhat in doubt whether the allegatiou here made is equivalent to one that the company neglected to place the crossing there. There was no sign there, that is admitted on all sides. The supreme court has held in the Whitacre case, 35 Ohio St., 627, that unless the plaintiff averred as a ground of negligence that the sign was omitted, he cannot insist upon it as a substantive cause of action; but further the court holds in that case, that evidence that there was no sign provided may be received, as bearing upon the question of contributory negligence on the part of the plaintiff. However, in this case, the whole record shows that this plaintiff had knowledge of this railroad crossing. She didn’t know precisely where it was located, but she knew substantially where it was. S.h.e was advised by her father, as they were traveling along the highway, that they were near the railroad, and she was directed to look out; and she testifies, no doubt correctly, that she was looking out — 'that sbe did look out several times before the carriage reached the ridge road crossing, Again, there are several items of testimony which show that this plaintiff haü knowledge that the crossing was there, and was carefully looking out, according to her testimony, down to the time that she reached the ridge road crossing, for the approaching train.

Passing to the next ground alleged as constituting negligence, we find these allegations: The company negligently and carelessly allowed and maintained obstructions to a proper view of its said train, locomotive, and railroad,” There is no testimony to support this allegation, except that some of the witnesses testified that the top of the wild cherry tree standing on the east side of the ridge road in or near the angle formed by the ridge road and the railroad crossing, overhangs, to some extent, the railroad right of way. In all other respects the allegation that the railroad company allowed and maintained obstructions to a proper view of its trains and railroad is disproved. And in that connection it may be proper to refer to the well known case of Penna. Co. v. Morel, 40 Ohio St., 338, where the court held:

“M., approaching a railway crossing with a team drawing a loaded wagon, heard a whistle announcing the near approach of a train, but drove on without stopping, although his view was partially obstructed, and the noise of his own wagon drowned that of the train; he attempted to cross the track because he ‘thought he could get across before the train would come.’ The locomotive damaged his person and his wagon. Held,the fact that the view was obstructed did not excuse his neglect to stop and listen, it made his neglect to do so greater. We think the evidence clearly proved him guilty of contributory negligence,”

The remaining ground of negligence set forth in the petition is as follows: “The railroad company negligently and carelessly operated and handled its said locomotive and cars.” Courts are. very liberal in sustaining general alegatinns of negligence, even though the matter constituting the negligence is not set Out. But we have very much doubt, even under the general rule adopted by the courts in this respect, as to whether this paragraph contains a single allegation of fact,or such an allegation of negligence as would permit a reception of proof under it. The casein 90 Ill., 425, of R. R. Co. v. Harwood, contains this in the opinion of the court:

“It is alleged in the first count, that the defendant ‘so carelessly and improperly drove and managed the said engine and train of cars that it struck and so injured the said Riley Harwood that afterwards, on the 18th of August, 1874, he died. ’ In or by what acts the carelessness or improj riety in driving and managing the train was manifested is not attempted to be disclosed. It may have been by running at a greater rate of speed than safety or prudence required, as well as by any other means. Carelessness and impropriety are not descriptive of specific acts, but of a class of acts only, which may include an indefinite number of specific acts, each differing in its character from the others. The objection really goes to the sufficiency of the declaration, and should have been taken before trial, by demurrer. It is too late now to urge it”.

In this case,before answer,there was a motion to make the petition more specific in regard to this allegation. That motion was overruled, and the defendant thereupon proceeded to file its answer. Upon this subject I also deem it proper to cite the case of Coal Co. v. Strong, 49 Ohio St., 598, and the case of R. R. Co. v. Dunlap, 29 Ind., 426. We merely suggest those points upon the petition as to the sufficiency of this allegation, without ruling directly upon it.

Let us inquire, then,in what particulars it appears from the proofs that the “railroad company carelessly operated and handled its locomotive and train of cars.” The general allegation now being considered is as to the manner in which the locomotive and train of cars were being operated and handled by the company. First, the clear preponderance of the proof shows that the engineer whistled for the railroad crossing shortly after the train emerged from the woods, more than eighty and less than one hundred rods’ from the crossing. In the main,' the testimony of the witnesses for the defendant — and they are quite numerous — is positive and direct, that those signals were given. The testimony on the part of the plaintiff is uncertain, and lacks any degree of positiveness upon that subject. In the main it is to the effect —and there is not much of it — that they didn’t hear the’ whistle at the point near the woods ninety rods below, though they do state positivety that they heard the whistle at the ridge road crossing, three hundred and forty-six feet away from the railroad crossing. Quite a number of witnesses state that fact. Second. In view of the situatiou, circumstances, and surroundings as shown in'the record, we find that the train was not being run at an improper rate of speed at the time the accident occurred. Under the circumstances disclosed in the case, the train operatives had a right to suppose that travelers upon the highway would not venture to cross the track in front of the approaching train, which was plainly visible for some distance down the track. The bushes and frees complained of, in no degree intercepted the view of persons passing toward the ridge road crossing, along the county line road, west of the railroad crossing, of that part of the railroad lying between the two highways; and it is very questionable whether they obstructed the view in that part of the railway line lying to the northeast of the ridge road. The plaintiff and her father were both familiar with the locality and its dangers, and, as she stated, were on the lookout for the train at that point. Wether she saw the train after passing the ridge road crossing, or what occurred in the carriage after passing that point does not appear, for the reason, as stated by the plaintiff, that she lost all consciousness of what had occurred between the ridge road crossing and the point of the accident. If as the train passed the ridge road crossing east, the carriage, a short distance west of the crossing, traveled at the speed shown in the record, the train would have reached past the road crossing considerably in advance of the carriage. We made a computation from data furnished in the case touching the locality of the train and the locality of the carriage when the train came from the woods, on the basis that the train was running thirty miles per hour and the carriage six miles per hour. Upen that basis, when the carriage was at the crossing of the ridge road, the train was five hundred and thirty-nine feet west, to-wit: one thousand and twelve feet from the accident, six hundred aud six feet east of the ridge road — that is to say, so the train and the carriage could come together at the point of the crossing. Assuming that the train was running at the rate of thirty miles an hour, and inquiring nppn that assumption where the carriage was when the train emerged from the .woods, or was ninety-four rods distant, wa would have that result, that at the time the carriage crossed the ridge road the train was five hundred and thirty-nine feet west, to-wit: it was one thousand and twelve feet from the accident, and six hundred and six feet from the ridge road. At the time the train was at the corner of the woods, the carriage was 107.8 feet from the ridge,and 309.8 feet from the place of the accident. At the time the train reached the ridge road crossing, the carriage was seventy feet east of the accident. And as I have stated, upon tables reliable in that regard, if the train was traveling at the rate of thirty miles an hour, it would have gotten over the ground from the ridge road crossing to the county line crossing in eight seconds; if it was going at forty miles an hour, as stated by some of the witnesses, it would have passed over the same distance in six seconds. Of course, the faster the train was traveling — -and the witnesses for the plaintiff seem disposed to make it travel at a very high rate of speed,- — -the nearer to the railroad crossing the carriage is placed to have the train meet it at that point.

Taking all the testimony together, it does not ’appear to us that the horses were running away, although, after passing the ridge road.their speed was increased. The plaintiff and one of the brakeman say that the father looked out and back at the ridge road, and that they were not traveling at an unusual rate of speed, at least until after they passed the ridge road crossing. The plaintiff herself says that down to that point they were going along at an ordinary jog and trotting If these horses and carriage were not seen by the employes on the locomotive until they were within a few feet of the crossing, as testified to by them, it would have been impossible to avoid the collision. Now,-considerable was said,or strong reasons were urged, for placing liability on the company, upon the fact that those employes at the engine did not see these parties. The fireman and the head brakeman were on the locomotive,seated on the left side., looking the other way, but the were looking in the direction of where they would have seen the horses and carriage or any conveyance, had it been coming from the west instead of the east. And we cannot undertake to say that thus seated in a locomotive, there being no apparent danger, and having a right to suppose that persons traveling along a highway approaching a railroad crossing of which they have knowledge, with a train in plain sight, would not undertake to cross the track in advance of the engine; and we can hardly regard it as a ground of negligence, under the circumstances, that they did not see those parties approaching the crossing.

Upon the whole, we are of opinion that the testimony fails to show that the company was guilty of negligence.

As to the question of contributory negligence, that is a matter of fact which we do not feel called upon to pass upon in this case, as the case must go back again for a new trial.

The exceptions taken by the railroad company thropgh its counsel to the refusal of the court to give the request of the company and to the instructions that were given by the court, we dc not think should be sustained. We think the court committed no error, either in its charge or in its refusal to charge, except in this regard, and that affects the plaintiff below: The court very distinctly oharged two requests of counsel for the railroad company, and also carried into its main charge explicitly, instructions to the jury, that if the father, who was driving the team, was guilty of contributory negligence in the matter, the contributory negligence which would bind the father, would bind the plaintiff, the daughter, who was traveling with him; which is clearly in conflict with the rule laid down in Ohio, in R. R. Co. v. Manson, 30 Ohio St., 415; Transfer Co. v. Kelly, 36 Ohio St., 88; R. R. Co. v. Eadie, 48 Ohio St., 91; Davis v. Guarnieri, 45 Ohio St., 470, Inasmuch as the father was deaf' and old,and had taken his daughter along partly for the' purpose of furnishing him eyes and ears, if it had appeared that she had neglected this duty in any respect, so' that the negligence would be her negligence and not the' father’s, as a matter of course, the plaintiff below would be' liable; but to charge in a broad and emphatic way that if' the father was guilty of negligence, then the daughter was responsible for it, was error.

For these reasons the judgment of the court of common pleas will be reversed, the verdict set aside, and a new trial granted, and the case remanded for further proceedings.

Defendant in error excepted.


source: Caselaw Access Project

author: Douglass, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co,. O., Circuit Court
    July Term, 1898.)
    Before Marvin, Caldwell and Douglass, JJ.
    (Sitting in Hamilton County )
    MARY A. BRITT v. EUGENE T. LEWIS, Auditor, and TILDEN P. FRENCH, Treasurer of Hamilton County, Ohio.

      Board of Equalization — May act on complaint or of its own motion—

    (1) . A complaint or suggestion to the board of equalization is not a condition precedent to its action in changing values for gross inequality. It may take action on its own motion, or from, its own knowledge.

      Same — Conditional action—
    (2) . While a conditional action of the board is irregular, under the circumstances of this case, it was not prejudicial to the. plaintiff,and did not render the action void.

      Same — Majority may act— ,
    (S). Where an authority has been delegated to a board or committee, permanent and continuous in its nature and organization, the authority thus delegated to such board orcommitteomay be exercised and performed by a majority of the whole. number, if all have been notified to attend the meeting. And if a majority do attend, their act will bind the whole body.
    ■Same—
    (4). Where one member of the board of equalization of Cincinnati was absent for two weeks, by leave of the board after its organization for the year, and while it was holding regular meetings daily, the remaining members may meet and continue the work of the board, and their action will be the legal action of the board.
   Douglass, J.

This action is brought to enjoin the collection of taxes on six separate pieces of property belonging to Mary A. Britt. 'The additions were made by the Board of Supervisors of ¡the city of Cincinnati, acting as the City Annual Board of Equalization. The first action of the Board in this regard was in 1892, and, because no notice was served on the owner of the property,the action of the Board was held to be invalid by the circuit court in 1895, 11 O. O. Rep., 115, and in Jun.e, 1897, the supreme court affirmed this judgment. The additions made in 1892 were held void.

In the meantime, in May, 1896, the Board first giving •notice to Mary A. Britt, sought again to act and to make ■¡these additions while the case involving their former action was pending in the supreme court.- Their action was upon the following limitation:—

“And it is hereby declared the intention of this Board, should the supreme court of Ohio decide in favor of the county in the case now pending, wherein the county auditor and county treasurer were enjoined from collecting taxes on certain additions to the taxable valuation of these specific properties in 1892, and upon which no taxes have been paid for the years 1892, 1898, 1894 and 1895, then the amounts hereby ordered, to be added in 1896, are not in addition thereto.”

The claim of Mary A. Britt is — (1.) That the full Board did not act; (2.) That the action taken was conditional and not absolute, by reason of this limitation that was made upon the Board by itself; (3.) That the Board acted on its own motion solely, and not upon complaint.

As to this last proposition, a complaint or suggestion to the Board is not a condition precedent to action by it. It may act on complaint. It is charged with a public duty which can only be performed when it acts either on complaint or from knowledge on its own motion. This point is not well taken.

The second is that the action of the Board was conditional, and depended upon the final issue of the case pending in the supreme court. Such action is irregular, but it ears not be prejudicial to Mary A. Britt, and we are of the opinion that for this reason, we cannot hold the action of the Board to be void.

As to the third,it is insisted, and it is ably argued, that,, when final action was taken making these additions, one member of the Board was absent, and this the record showsi to be true. The argument is that the act of a taxing officer is judicial in character as distinguished from purely administrative functions, and that the taxpayer is entitled to the joint judgment of the full Board. Many authorities were cited, and notably the case of Hamilton v. The State,. 3 Indiana, 452, to sustain this view, and it is an authority in support of the plaintiff’s claim. However, a distinction must be taken as to the rule to be applied between a committee, board or officer, appointed to perform a single act,, or even a series of acts, and a permanent board such as; this. This board sits from May until September, and is a permanent board as contra-distinguished from a committee, board or officer appointed to perform a single act, or single series of acts. When it acts, it does not cease to exist, and it may be denominated a permanent board, unlike the case of Wells County Road, 7 Ohio St, 17, where commissioners were appointed to establish a road, one of whom did not qualify, and the action of the other two was held ■erroneous. It is not an authority in point. In the case of Young v. Buckingham, 5 Ohio St, 485, commisioners were appointed to perform a single act, namely, to appraise property, and it was held that two could not bind all.

Numerous authorities are cited, notably Hamilton v. The •State, supra, that sustained the contention of counsel on this point,which I have already stated, The authorities •upon this proposition make it a debatable question.

Numerous authorities are cited by counsel for the defsndant, and we refer to the People ex rel. v. Loew, 28 Barb. 310; Martin v. Lemmon, 26 Conn. 192; Perry v. Tymen, 22 Barb. 137, together with the discussion of this question in Judge Dillon’s very excellent work on Municipal Corporations, which was not cited, but which we have examined.

In the examination of these authorities,we find them exactly quoted in the brief of counsel for defendants, and these sustain the other contention that a majority of the body, all having been notified of the meeting, may meet and bind all.

In the case of People ex rel. v. Loew, 28 Barb. 310, the syllabus is as follows: —

“Where a power is to be exercised by several persons, a majority of the whole number may proceed to act, and their action will be legal, provided all the members composing the body are summoned to attend, or have notice of the time and place of meeting. The right to such notice is one which the majority cannot take away from the minority. All comprising the body are entitled to reasonable notice of the time and place of meeting; and if all are summoned, or have notice, a majority attending may proceed to act, and a majority of that quorum may bind the whole body.”

In the case of Hamilton v. Loew, 26 Conn. 192, the syllabus is as follows: — •

“An act of a public nature, which is to be performed by a committee may, where merely ministerial, be performed by members of the committee acting separately, and by a majority of the members, and it is holden in this state, in a certain class of cases, that the act requiring the exercise of judgment may be so performed; but, as a general rule, where'an act requires the exercise of judgment,the members of the committee must convene, or be notified to convene, and confer on the subject, and a majority thus convened will constitute a quorum and may perform the act, and, according to some modern authorities, a majority of the, quorum has the same power.”

W. M. Ampt, for Plaintiff.

Frank F. Dinsmore, Assistant County Solicitor, for Defendants.

From the case of Perry v. Tymen, 22 Barb., 137, we quote as follows:—

‘‘Where power is delegated for a mere private purpose, all the persons, if more than one, upon whom the authority is conferred, must unite and concur in its exercise. In case of a delegation of a public authority to three or more persons, the authority conferred may be exercised and performed by a majority of the whole number. If the act to' be done by virtue of such public authority requires the exercise of discretion and judgment — i. e., if it is judicial — ■ the persons to whom the authority is delegated, must meet and confer together, and be present when the act is performed, or, at least, a majority must meet, confer and be present, after all have been notified to attend.”

Now,a review of these authorities leads us to the conclusion that where an authority has been delegated to a board or committee, the authority thus delegated may be exercised and performed by a majority of the. whole number, if all have been notified to attend the meeting. And if a majority do attend, their act will bind the whole body.

Taking this view, it follows that the petition will be dismissed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    July Term, 1898.)
    Before Marvin, Caldwell and Douglass, JJ.
    (Sitting in Hamilton County.)
    ALIAS SCHINDLER v. EUGENE T. LEWIS, Auditor, and TILDEN P. FRENCH, Treasurer of Hamilton County, Ohio.

      Taxation — Increase of valuation as Axed by assessor, by board of equalization—
    (1) . It is not necessary that the board of equalization should give notice of its proposed action, to a property owner, before increasing the return of the assessor for a new building or structure erected by such owner.

      Same — “New structure” defined—
    (2) . Improvements made in an existing building, not so radical that the identity of the original is destroyed, and amounting only to a repair, alteration or modification of the old structure, will not, be considered as being a new structure or new building to be placed on the duplicate under section 2753,R. S.
   Douglass, J.

This cause is here on appeal, and a suit is brought to enjoin the collection of taxes on the sum of $1160.00. The plaintiff is the owner of certain property, properly described in his petition, which was valued for taxation on the duplicate of 1895-at $4,800.00.

After action taken by the proper board it was placed upon the duplicate of 1896, at $5,960.00 This addition of $1,160.00 to the taxable valuation was so made by reason of the fact that certain changes had been made in the structure situated upon the premises.

The Board of Supervisors of the city of Cincinnati, acting as the City Annual Board of Equalization, added this value in 1896, and it is claimed that the same was made without notice to the plaintiff, and hence an injunction was prayed for, and temporary order made.

The auditor contends that prior to 1896 the plaintiff had improved the property by altering, remodeling and rebuilding the structure thereon, and by making and erecting new structures thereon, which after a view by the Board of Equalization resulted in this added value, which now properly appears upon the duplicate. The plaintiff denies, as a matter of fact, that any new structures were erected on said premises, and denies that this added value was so found by reason of any gross inequality existing in the value of any new structure. Upon final hearing in the court below the petition of the plaintiff was dismissed.

As we view this case, as governed by the legislation that must control, we have the single question presented, namely, what was the character of this improvement? Was it a repair, alteration or modification of an existing building in its internal arrangement or economy, or was it, under the evidence in this case, a new structure.

It would seem that a fair construction of sec. 2807, Revised Statutes, would not permit any additions to the taxable valuation without notice to the parties, except in case of new structures.

Revised Statutes 2804 provides the method of equalizing assessments in cases of gross inequality, and make action taken in that behalf absolutley void in the absence of notice.

Revised Statutes 2753 provides the methods of assessing new structures, etc. Here no notice is required. Now, on this proposition, which is the single question presented, we have a case that enlightens us somewhat on the proposition, viz: What is a new structure? The case of Ferrine v. Parker, Receiver, 34 N. J. L. 352, is as follows: —

“The terms ‘if any building or addition shall be erected on any lot’, etc., used in the charter of the city of Trenton, in reference to additional assessments, held to mean only lateral additions which occupy lands without the limits of the original building. Additions in height or depth are merely alterations, and not within the meaning of the charter.”

And in the case referred to the syllabus further states: — ■

W. M. Ampt, for Plaintiff.

Frank F. Dmsmore, Assistant Coun-ty Solicitor, for Defendants.

“The term ‘addition to a building’, as used in the 5th section of the Mechanics’ Lien Law, was defined by Chief Justice Green to be a lateral addition, one which occupies land without the limits of the original building, and that, adding to its height or depth, or changing its interior was merely an alteration,and not an addition.”

It must be presumed that the legislature in the act now considered employed the word “addition” in the sense which judicial construction had given it, and that its purpose was to subject to increased assessment only a lateral addition. If the term “addition” was held to include every improvement which adds to the value of property.it would virtually defeat the object of this special law, and impose a necessity in almost every case of making an annual assessment, bringing within its reach every real estate owner who put in a new door, mantle, or lock, or who put on his house a coat of paint. If the new structure covered a new area of ground, then there could be no question. If the building were destroyed, so that but a shadow of itself remained, it would be a new structure. If some changes are made, not so radical that the identity of the original is destroyed, it is plain that this is only a repair or modification, and not a new structure.

What is the evidence in this case? It is not necessary to lay down any ironclad or inflexible rule as to what constitutes a new structure, and we do not. Under the evidence in this case we do not subscribe to the view that this was a new structure. No notice having been given in this case, we are of the opinion and so hold, that the action of the board was unauthorized and void, and the injunction is made perpetual.


author: Smyser, J.

text:
    (Fifth Circuit — Licking Co.,O.,Circuit Court
    March Term, 1898.
    Before Adams, Douglass and Smyser, JJ.
    THE UNION CENTRAL LIFE INSURANCE CC. v. GEORGE MORROW et al.

      Loan from Life Ins. Qo. —Insurance required to be taken at .same time not usurious—
    (1) . Where a life insurance company requires of an applicant for a loan at the same time to take out an insurance policy on bis life on the usual terms and conditions, such insurance and the premiums paid thereon will not be considered as compensation m addition to legal interest for the loan, and usurious.

      Usury — Must be plead—

    (2) , Usury must be plead in Ohio, except that where upon the face of the petition, without answer being made, it is apparent that there is usury, the court will, sua sponte, consider usury, and render judgment for the proper amount.

      Usury must be present at inception of contract—
    (3) . In order to make the plea of usury available, it must appear . that it was present at the inception of the contract. Any subsequent arrangement, agreement or contract that embraces usury will not relate back to the original contract, and taint it if usury was not present at the inception of the contract.

      Delinquent taxes paid by lienholder — What entitled to recover— (i). Under sec. 2853, R. S. where property is in arrears for taxes, a lienholder can not stand by and see the property sold for taxes so as to put on a penalty, and then acquire title by an assignment of the certificate. But such lienholder should pay the taxes, and can then recover what he has paid for taxes and the amount the certiScate calls for, with simple interest,and without penalty thereon.
    Appeal from the Court of Common Pleas of Licking county.
   Smyser, J.

The case of the Union Central Life Insurance Company v. George Morrow and others was submitted to the court upon the pleadings and the evidence. The company alleges that it is an Ohio corporation, and its place of business is in Cincinnati. It sets out a note for $1564.88, dated October 4th 1876, due in five years after date; interest paid to October 4th, 1893; two other notes of $125.19 each, dated July 15th, 1890, and due respectively on the 4th of October, 1894 and 1895; claims there is due something like $1800 on these three notes; and that at the time of the execution of the first note a mortgage was executed by Morrow and wife to secure the payment of that note and the interest thereon. That the two notes of $125.19 each are coupon interest notes, or notes given in payment of interest on that amount; and asks for an accounting, foreclosure of the motgage and sale of the premises.

To this George Mrrrow and John J. Deeds answer, but they make substantially the same claim; so I confine myself to the answer and cross-petition of Morrow. He says:

That prior to the execution of the note first mentioned in the petition and the mortgage therein mentioned, the agent of the plaintiff promised and agreed with this defendant that the plaintiff would advance and loan to this defendant the sum of one thousand dollars, upon the condition that this defendant would execute to the plaintiff his note for fifteen hundred and sixty-four dollars and eighty-eight cents and secure the same by executing to the plaintiff a motgage upon his real estate described in the petition, and in addition thereto take out an insurance policy upon his life in the plaintiff company, upon the defendant’s life, for the sum of twenty-five hundred dollars, and apply all of said sum which said note called for, above one thousand dollars, to-wit: The sum of five hundred and sixty-four dollars and eighty-eight cents, as payment in advance upon said insurance policy for the time said note was to run before maturity, and assign and transfer said insurance policy to the plaintiff as additional and collateral security for said loan, evidenced by said note to be given for the whole amount of said sum of fifteen hundred and sixty-four dollars and eighty-eight cents, and that said sum of five hundred and sixty-four dollars and eighty-eight cents, so advanced and paid upon said policy, and all further payments that should be made thereon by this defendant, and all the profits that accumulated upon said policy, would be applied for the benefit of this defendant as a credit upon said loan, and in event of the defendant's death before the maturity of said loan, then the amount for which said policy was to be issued, to-wit: twenty-five hundred dollars, left after deducting the amount that should be due upon said loan, to be paid to the legal holder of said policy.
“That in pursuance of said agreement this defendant applied to said plaintiff, through said agent, for said loan and insurance, and.said plaintiff, in pursuance thereof, on the fifteenth day of September, A. D. 1876, issued to this defendant its policy of insurance by which said plaintiff, in consideration of said application of this defendant, and of the payment of said sum of five hundred and sixty-four dollars and eighty-eight cents, in hand paid, and the annual premium of one hundred and thirty-one dollars, payable on or before the fifteenth day of September, A. D. 1881, and the like amount on or before the fifteenth day of September of every year during the term of five years from September fifteenth, 1881, unless said premium paid in and profits of said company should amount to said sum of twenty-five hundred dollars, or the defendant’s death occur before that time, assured the life of this defendant for the sum of twenty-five hundred dollars for the term of his natural life, or until the prior maturity, for the benefit of the assured, and agreed to pay the amount of said insurance to the legal holder of said policy at any time when the premiums paid, together with the equitable proportion of the company’s profits.should equal the amount insured, or incase of death of the defendant prior to such maturity, then, within ninety days after due notice and satisfactory proof thereof.
“That on the 4tb day of October, A„ D., 1876, the said plaintiff advanced and loaned to this defendant the said sum of one thousand dollars, and applied and credited this defendant as a payment for five years upon said insurance policy aforesaid, the sum of five hundred and sixty-four dollars and eighty-eight cents, and this defendant executed to it the first note and the mortgage mentioned in the petition, and assigned and transferred to the plaintiff said policy of insurance, and the amount advanced and paid thereon as aforesaid, and all amounts of premium that should thereafter be paid thereon, and all income and profits thereou, as additional and collateral security for said loan, evidenced by said first note mentioned in the petition, with the agreement between the plaintiff and this defendant that all of said money advanced and paid on said policy, and that should be thereafter paid thereon, and all profits thereon, should be applied by th’e plaintiff as a credit in any amount due and remaining unpaid to it upon said loan and note at maturity, and that the amount of said insurance, if the defendant died before maturity, or in case he did not die before maturity, then all payments and profits remaining after paying the amount due on said loan and note, to be paid by the plaintiff to this defendant or his estate,
“This defendant avers that the amount he advanced and paid upon said policy and collateral security, together with the profits thereon, amount to more than what is due on said notes and mortgage mentioned in the petition, and amount to the full amount of said insurance policy, to-wit: Twenty-five hundred dollars, and the same has long since matured. That this defendant has often demanded from the plaintiff a statement of the amount of the payments and equitable proportion of the profits of said company belonging to said policy, and has always been ready and willing and has offered to pay plaintiff any amount due thereon, and has demanded that plaintiff apply and pay out of the amount due on said policy the amount due to it on said note and mortgage mentioned in the petition, and to pay to this defendant the residue, due on said policy of insurance, but that said plaintiff has wrongfully and fraudulently refused to give this defendant any statement as to the amount paid thereon, and the equitable proportion of the profits of said company entitled to be credited thereon, or any statement as to the condition of said company or said policy, and has wrongfully and fraudulently refused to receive anything upon said policy and to apply any part thereof to the payment of the amount owed upon said notes and mortgage mentioned in the petition, or to pay to this defendant anything due him upon said policy,”

He denies that there is anything due the plaintiff, and demands that there be an application by way of payment and satisfaction of the indebtedness sued upon by the plaintiff, and that out of this twenty-five hundred dollars he have judgment for the residue.

To this there is a reply, which, in substance, admits that there was insurance for which the defendant is indebted, and asking for judgment, as is the petition prayed for.

The proof offered by Mr, Morrow was substantially this: That the agent came to see him; agreed to make a loan,but that the company would only loan him a thousand dollars on condition that he insured his life for the sum of twenty-five huundred dollars in the company; that that was to be payable in ten annual payments, and was to mature, by reason of the annual premiums that he would pay and the profits that would arise upon the policy, in probably fifteen or eighteen years; and that he was to be credited upon this money that the company loaned him out of that fund. The company, of course, denies this; say that they had issued a policy; that the policy was lapsed for non-payment of premium, and that it had not matured in any event, Substantially, that is the evidence. We are met right at the outset by an objection on the part of the company to the testimony of Mr. Morrow on the ground that it contradicts, or tends to contradict and vary a written instrument, and therefore is not competent. We do not take that view of this testimony, because the contention of Mr. Morrow is that payment of this claim that is now sought by the company to be enforced against him, was to be made, and was in fact made, in a certain way; and that there is nothing due, or only a certain amount probably. His contention is that there is nothing due; that on his life insurance policy he is entitled and has earned enough to be applied to the payment of this loan, and pay it entirely, and there be a residue for him.” So^that we do not think that that objection is well taken. On the other hand it is contended that some evidence that is here by way of deposition is improperly admitted; that the court should not receive it. We heard it under objection. It must be borne in mind that notice was served"upon Mr, Morrow to produce certain documents. ;aTrue, he says he has not got them; that he has made searclfjand cannot find them. The chief objection, however, is to the admission of an exhibit attached to a deposition, — a copy of a notice which it is claimed was sent to Morrow. This deposition of Clark was taken, who has been treasurer of this company since 1888; he was cashier prior to that, from 1879 to 1888; and prior to that he was there in a clerical capacity. He is first asked what notes, if any, Morrow gave. He tells. He is asked this question:

“State whether you had a printed form of notice of the approaching maturity of premium notes in use at that time?”.

Having given the date of maturity of the Morrow notes.

“Answer: The company has always had a printed form of notice which it has sent to the policy-holder prior, to the maturity of his note given for premium’’.
“Q. Please look at the printed form of notice which I hand yon, and state whether it is substantially the same as that employed at or shortly before the approaching maturity of the two notes to which you have referred.”

There is an objection to that.

“Answer: The form is substantially the same as that in use in 1884 and many years prior thereto.”

Technically, this might be objectionable; but it surely was competent to ask this witness if they had a form. He might have refreshed his recollection by looking at the books, and if he could testify from memory, could have stated the contents of the form in use at that time. We think there was no error in it.

The next question:

“Please state what you know as to the sending of a notice in this form to Mr, Morrow on the approaching maturity of the first of the two notes to which you have referred.
“Answer: This form of notice was sent to George Morrow, addressed to him at Outville, Ohio. It was sent under date of February 27th 1884.” •;

It was perfectly competent, because one of the contentions in this case was that the company had been in the habit of notifying Morrow as his notes would mature,or his premiums would mature when there was no note given; and tthat in this instance no notice had been given him, and therefore he was entrapped or lulled into silence or security, believing that his policy would not lapse or become forfeited for non-payment, and that therefore, this company ■ought not to avail itself of the right to insist upon a forfeiture because it had failed in that regard, That was one of the contentions between the parties, the company contending that it did notify him. It was competent for the company to show, by one who was in a position to know, that this notice had been sent. In this regard we find no error in the admission of this testimony.

It is urged in behalf of Mr. Morrow that no forfeiture of this policy is provided for in the policy itself. We quite agree with counsel; but this company is not insisting upon a forfeiture, but it is an abandonment of insurance. A policy may become lapsed by reason of non-payment of premiums. It is not strictly a forfeiture. In 1876 this contract was entered into. It is urged upon us that the note, the mortgage, the contract for insurance, and the insurance that was issued in pursuance thereof, constitute one transaction, and must be considered together. We think that is true; but the subject-matter about which they are contracting is divisible. They are contracting on the one hand for a loan of money, and that is to be secured by a mortgage ■upon real estate. On the'oiher hand a contract is being ■entered into for life insurance that is to be paid in a certain ■way; and right there, these two subject-matters of the contract diverge except in one respect only, and that is that ithe condition of the mortgage shall become broken — or shall become due rather, in the event of the death of Morrow before the time fixed for the maturity of the note, to-wit: The five years. It seems that at that time this company gave Morrow a thousand dollars in money. They took, a fifteen hundred dollar note. It íb also suggested to us that usury appears. It is sufficient to observe that usury is not plead. Usury must be plead in Ohio, except one-case in 29 Ohio State 587, where, upon the face of the petition, without answer being made, it is apparent that there is usury, under the provision of the code, the serial numbe of which I have not in mind now, the court will enter-judgment for the amount that appears to be due, the court will, sua sponte, consider usury, and render judgment for the proper amount. But, in this case, it does not appear upon the claim sued on. It is not apparent here that usury is embodied in this contract. So that that contention is not well taken. It might be observed further, ac-. cording to 25 Ohio St., 413, the case of Kilgore v, Dempsey, in order to make usury available it must appear that it was present at the inception of the contract. Any subsequent arrangement, agreement or contract that embraces usury will not relate back to the original contract,and taint it if usury was not present at the inception of the contract.

So if that were plead, we would say from the evidence-before us that we could not find usury here,

Stripped of everything, what is the defendant’s claim here? He admits that he got a thousand dollars. He gave a note for five hundred and sixty-four dollars. He was to have the profits upon his policy, and to pay premiums-on a twenty-five hundred dollar life insurance policy, and' that was”all to be credited upon this loan of a thousand dollars.®!.We do not think that that was intended, and this-evidence does not tend to show anything of the kind. Why, for five hundred ^dollars, if he had died the day after this-policy took effect/he would have had an estate of thirty-five hundred dollars out of this company; because they gave him a thousand dollars. It is true, he was to pay it back, but he would have had in money thirty-five hundred dollars. We do not think that that was the meaning. We think that the company insisted that he should take out insurance; they were willing to carry him on certain conditions; they were willing to issue him a twenty-five hundred dollar policy payable upon his death in one event, as the policy reads. What would they have received? If he had died at any time during the five years, he would have been entitled to twenty-five hundred dollars. What had he paid out? He had not paid out, in money, anything. Absolutely nothing.

It runs along until 1880, when nothing appears to have been said about this mortgage, or the note of fifteen hundred dollars, but this insurance was kept up and annual payments made until 1883, and these notes were given. This policy does provide that it may lapse for non-payment. The notes that he gave (which would be possibly a new contract) at that time provide for the same thing: That on failure to pay a note for premium,-the policy shall become null and void, and without notice to him. After’ 1883, he paid no further installment upon his life insurance policy. The company,as it appears here, cancelled it, as it had a right to do, and had-a right to do without notice. They probably did not notify him that it was cancel-led; but we think the company did notify Mr. Morrow of the maturity of the note, that he ought to have paid; that would have kept his policy alive. In 1885 his policy had been cancelled; it had lapsed, but the mortgage indebtedness was extended. It is a fact that is cogent evidence here that at the time when Mr. Morrow comes to extend the time ■ of payment of his mortgage indebtedness he does not allude ■ in any way to his policy of insurance. At the’ expiration' of five years, there is another extension (in 1890), and there' is no reference made by Mr. Morrow at that time, and if his contention be true here, his debt was paid. But he is silent. He does not say a word to the company, but, on the other hand, he presents the company a written application in which the usual reference to life insurance policies and so on is stricken out, and the company say to him that if you will furnish us so many notes and so much interest, we will extend the time of your loan for a period of five years; he subscribes to that; the notes are forwarded; two of them are now in suit; he paid some of them without saying a word as to his policy.

Without going any further, we feel from this evidence that it is one of those unfortunate cases, when pay-day has come, the unfortunate debtor is struggling to relieve himself. He thinks he has got something in that policy. It is no answer to plead that the company has refused, on demand, to give him a statement, because Mr. Morrow had a remedy open to him. He could have attached to his answer interogatories, requiring the company to answer how much had been accumulated on that policy, assuming that it was in force; and how much was due on that policy, to which he would be entitled to credit each year. Another way it could have been done: The processes of the court are open; he could have gone to Cincinnati where this company is located;could have taken a deposition; could have overhauled the books. It is no answer to say that that would have been burdensome or involved time ór the expenditure of money; you can only establish rights sometimes in that way. He could have gone there and ascertained exactly what was due him. That was not done.

We think that this company acted fairly. It agreed to issue him insurance; and there is a provision in the policy that, after two full payments are made, for non-payment of any future premium, the policy may be surrendered and a paid-up policy had for the premiums that are already paid. He could have availed himself of that. He did not do it. As I said, we think the subject-matter about which they were contracting is divisible. The one was a loan, He got the money. He got twenty-five hundred dollars of insurance paid up. The company were liable to have it to pay in twenty-four hours. They took that risk. In that respect, that was straight life insurance; and the two are not necessarily involved.

Follett & Follett, for Plaintiff in Error.

J. A. Flory, C. W. Miller, and Edward Kibler, for Defendants in Error.

Taking the view that we do of it in respect to this claim made here, the decree will be for the amount claimed in the petition.

By way of supplemental petition, this company seis up the payment of taxes and the assignment to it of a tax certificate. In respect to that, we feel, and so hold, under section 2858, this company could have paid the taxes and prevented a penalty, and we think it ought to have paid them. We do not think, being a lien holder, and in default for payment of taxes as Mr. Morrow was, that this company would have a right to stand by and see the property sold for taxes, and sold so as to put on a penalty, and then acquire title by having an asssignment of that certificate. But for the amount of taxes that it has paid, with simple interest, the company will take a decree in that respect, for the amount paid for taxes directly and what it holds the certificate for by way of assignment,computing the interest at simple interest. We think the penalty ought to be excluded, because we think it was the duty of the plaintiff to see that these taxes were paid,

It was suggested to us that the sale for taxes was irregular. The court is not going to skirmish around for irregularity. Counsel did not offer anything to show irregularity, and we take the sale as being regular in the absence of any proof to the contrary.