text:
    SPECIFIC PERFORMANCE OF BUILDING CONTRACTS.
    [Circuit Court of Franklin County.]
    The City of Columbus v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and The City of Columbus v. The Pittsburgh, Cincinnati Chicago & St. Louis Railway Company.
    Decided, January 19, 1904.

      Building Contract — Specific Performance of, will be Decreed, When— Purpose of the Structure Sufficiently Defined, When — Possibility of Change of Ownership of the Property.

    1. The general rule that a court of equity will not decree specific performance of a building contract does not apply where it is not competent for the plaintiff to enter upon the defendant’s premises to build, and where a measureable money equivalent can not be had.
    2. Where the contract of the defendant is to do defined work on his property, and the performance in specie will alone answer the purepose of justice, the court of chancery will compel a specific performance, instead of leaving the plaintiff to an inadequate remedy at law.
    3. In such case, where the purpose to be accomplished by the structure is expressed in the contract, and can be easily performed, the building is, for that purpose, sufficiently defined.
    4. Where the violation of the contract is flagrant and the injury serious, the court will not withhold a decree in specific performance, for that there is a possibility, but no pending probability, of its becoming inoperative by a change in the ownership of the property.
    Wilson, J.; Summers, J., and Sullivan, J., concur.
   These actions come into this court on appeal from a judgment in the court below, sustaining a general demurrer and dismissing the petition in each ease. They are submitted together as involving the same questions of law.

The actions are brought to enforce the specific performance of a contract made by the defendants, respectively, with the plaintiff in and about the erection of the viaduct on High street in said city. The contract is attached to the petition. The particular stipulation which is brought into question is con-tamed in what is designated as section fourteen of the contract. It' reads as follows:

“In consideration of the first party (the city) constructing the viaduct at the elevation shown upon said plan hereto attached, said second and third parties will, at their own expense erect, or cause to be erected, on their property fronting on the viaduct and its High street approaches, neat and ornamental buildings to obstruct from the part of said viaduct immediately opposite their said property the view of cars and engines; the construction of said buildings to be commenced within sixty days after the completion of said viaduct, prosecuted without unnecessary delay, and fully completed within two years from the completion of the viaduct. This stipulation shall not create any lien, charge or incumbrance on said fronting property, nor impair in any wise, the right or power of said second and third parties to lease, sell, convey or dispose of said property, or any part thereof, free from any claim or lien of the first party, arising out of this agreement; nor shall such lease, sale, conveyance or disposition release said second and third parties from their obligation to erect said buildings, or to cause them to be erected.”

The city pleads compliance with all of the terms of the contract on its part, and avers in the first case that the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, owning property fronting on each side of the viaduct, and still being in possession of the same, has failed and refused, and still refuses to erect the buildings as it has agreed to do; and in the second case that the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, owning and in possession of property fronting on both sides, having complied with the contract to the satisfaction of the city as to the property on the east side, has failed and refused, and still refuses to erect the buildings on the west side thereof.

The question raised upon the demurrer is: Do the petitions state a case for specific performance? The propositions made in support of the demurrer are: That the city is without power or authority to enter into the contract; that as a general rule courts of equity will not order the specific performance of a building contract, and the petitions do not state a case within any of the recognized exceptions to the rule; that the contract is too indéfmite and uncertain to form a predicate for such decree, and that, it being in the power of the defendants to render the decree inoperative by selling or leasing the property, the court will not order specific performance.

As to the first proposition it may be conceded, upon the authorities cited, that the city, on its administrative side, is without power to enforce the erection of these buildings; such power not being within any legislative grant, or a proper exercise of the police power. But we know of no authority, and none is cited, which will prevent the city, as a private business corporation, from entering into any contract that it may have good reason to believe advantageous and beneficial to the citizenship; and such, in our view, is the contract in question.

The general rule that a court of equity will not decree specific performance of a building contract does not apply where it is not competent for the plaintiff, or any one for it, to enter upon the defendant’s premises to build, and where a measurable money equivalent can not be had.

In a foot note to the case of Moseley v. Virgin, 3 Ves., 184, the reason for the rule is said to be, “If one will not build, another may, and there can be a full compensation in damages.”

The exceptions to the rule and the authorities sustaining them are collected in a note to Section 1402, Pomeroy’s Eq., Vol. 3, p. 445. From them we quote:

“This court has jurisdiction to enforce the specific performance of a contract by a defendant to do defined work upon his property, in the performance of which the plaintiff has a ma- , terial interest, and which is not capable of adequate compensation in damages.” Storer v. Great Western Ry. Co., 2 Young & C. Ch., 48.
“Where from the nature of the relief sought performance of a covenant in specie will alone answer the purpose of justice, the court of chancery will compel a specific performance, instead of leaving the plaintiff to an inadequate remedy at law.” Stuyvesant v. The Mayor of New York, 11 Paige’s Ch., 414.

Another exception to the general rule, well sustained by authority, is where there has been a part performance, so that the defendant is enjoying the benefits in specie.

The eases at bar come clearly within the exceptions if the work is sufficiently defined. The relief here sought is, in the language of the contract, the erection of “neat and ornamental buildings, to obstruct from the part of said viaduct immediately opposite their (the defendants) said property the view of cars and engines. ’ ’

Nothing short of performance in specie will accomplish this purpose and at the same time give to the viaduct the appearance and advantages' of a continuous street. Nor is it perceivable how a rule in damages could be framed so as to give adequate relief.

But is the contract sufficiently definite?

In the case of Price v. Corporation of Penzance, 4 Hare, 507, the contract was that the corporation, having purchased the plaintiff’s land, “should at their own expense make a street, and also a market.”

The vice chancellor said:

“Under this contract the corporation has taken possession of the land and converted it; and having had the benefit of the contract in specie as far as they are concerned, I need not say that the court will go to any length which it can compel them to perform the contract in specie.”

The court asked this question, however: “If I make a decree for the performance of the contract, how is the court to know when the contract is performed?”

Subsequently the corporation having by resolution declared that the market should be one for the sale of fish and shoes, the court said in a further hearing of the case: “This has gone far to remove the difficulty to which I have adverted.” Thereafter the corporation performed the contract, leaving the case to be adjudged as to the costs only.

In Sanderson v. Cockermouth & Workington Railway Company, 11 Beavan, 497, “A railway company about to sever the plaintiff’s land by their railroad agreed to purchase the necessary portion of land, subject to making such roads, ways, and slips for cattle as might be necessary. ’ ’ And, having taken possession, and severed the land, the court held that ‘' though it was difficult to execute an agreement thus expressed, yet that the plaintiff was entitled to specific performance; that the word ‘necessary’ must receive a reasonable interpretation.” And it was held to mean ‘ ‘ Such roads, ways, and slips for cattle, as might be necessary and proper for convenient communication betwen the severed portions of the plaintiff’s land.”

In Storer v. Great Western Railway Company, supra, “The defendants agreed to purchase so much land as was necessary for their purposes, at a price named, and to construct and forever thereafter maintain one neat archway sufficient to permit a loaded carriage of hay to pass under the archway, at such place as the plaintiff, his heirs and assigns, should think most convenient, in his pleasure grounds, and should form and complete the approaches to such archway.” The vice chancellor said:

‘ ‘ There is no difficulty in enforcing such a ' decree. The court has to order the thing done, and then it is a question capable of solution, whether the order has been obeyed.”

In Lawrence v. Saratoga Lake R. R. Co., 36 Hun. (N. Y. Sup. Ct.), 467, the contract provided among other things, that:

“The defendant should simultaneously with the construction of said railroad erect at or near Excelsior Spring, owned by the plaintiff, a neat and tasteful station building, for the accommodation of passengers to and from said spring, which shall be a regular station of the road, and all regular trains shall stop at said station, the name of which shall be Excelsior Spring Station.- Reid: That the defendant could, and should be compelled to specifically perform the said agreement.”

This case is approvingly cited by the New York Court of Appeals in Prospect Park & Coney Island R. R. Co. v. Coney Island & Brooklyn R. R. Co., 1 Am. & E. Eq., 395. These cases are cited because the contracts might be said to be indefinite, and because they illustrate the length to which the courts of equity will go in order to do justice between the parties.

There is a class of cases holding that kindred contracts can not be specifically performed. Port Clinton R. R. Co. v. C. & T. R. R. Co,, 13 O. S., 545, is a leading case in that class.

In the nature of things this must be so, for the reason that some such contracts are capable of being performed while others are not. It is not then so much a question of authority as it is to which class does the contract belong; always remembering that a doubtful case will be cast on the side where complete justice can be done.

In the light of all the authorities there are no insuperable difficulties in the contract sued upon here. The words “neat and ornamental” should receive a reasonable construction, looking to the purpose it is sought to accomplish. The contract specifies the purpose, in so far as the city is concerned. It is to obstruct the view of cars and engines, to persons and animals crossing the viaduct — a very useful purpose, and, it would seem, very easy of accomplishment to the satisfaction of the city. The fact that one of the railroad companies has erected buildings on the east side of the viaduct satisfactory to the city is a demonstration of this view of the contract.

The defendants should not be heard to complain of the latitude in the contract, which will permit them to erect buildings suitable otherwise to their own purposes, and within their discretion as to cost and material.

The court will not assume for the purpose of defeating the contract that they will use material they should not, or that they will build other than upon approved architectural lines. Nor will the court be without power to execute its decree. It could, under the contract, enjoin the erection of a building that was being made purposely grotesque and unsightly, or that was plainly fraudulent and evasive of the contract. The same power will execute the decree.

A more serious question is, whether the court should order specific performance in the face of the other stipulation that the property may be leased or sold free from incumbrance. As a general proposition, it may be stated that the court will not do a vain thing, and that it would be vain to order specific performance if the defendants have the right at any time to revoke or annul their obligation to perform. Marble Co. v. Ripley, 10 Wall., 339; Express Co. v. Railroad Co., 99 U. S., 191; Rust v. Conrad, 47 Mich., 449.

These stipulations are not easily reconcilable. Ordinarily the right to sell the property free from incumbrance would imply the right to hold it unincumbered in order that it might be so sold at any time. But this would be in plain contradiction of the obligation of the railroad companies to build these structures; and if this interpretation is to obtain, it would seem that the contract had been purposely made to be broken, in order that an abatement in the consideration might be sought in the way of damages. Such indirection is not fairly presumable. A more reasonable construction would be that the railroad companies should build the structures at all events if they remained in possession; but if they proved to be a losing investment, so that their maintenance would be a charge and incumbrance upon the property to the diminution of its value, they should have the right to lease or sell the property freed from any such liability.

It is a familiar principle in specific performance that a party tc a contract may, at the election of the other party, be compelled to perform to the extent he is capable, before resort is had to the remedy at law.

In this case the plaintiff is entitled to have the contract executed during the time the defendants remain in possession, in order that it may, to that extent, enjoy the protection and the benefits flowing from it. This is particularly true when it is obvious the remedy in damages is wholly inadequate.

There was no want of mutuality in this contract at the time it was made, and can be none so long as the defendants remain in possession. That there may be such between the plaintiff and the lessees or assignees of the defendants is a question with which the court is not now concerned. The power of revocation or annulment of this stipulation to build is not vested in the defendants. On the contrary, it is expressly, and by the last words on the subject, inhibited. To this extent these cases are distinguished from the authorities above cited, upon which the defendants rely. That it may exist in the lessees, or assignees, is no defense here. They may not elect to exercise it, but may buy or lease for the express purpose of complying with the contract. If it be a sale or lease of the property “fronting” on the viaduct, and nothing more, it is difficult to .see how they could be benefited without compliance. Their property would be “in air” until it was physically attached to the viaduct by some structure fronting thereon. Just what is meant by property fronting on the viaduct at an agreed elevation, and whether the sale or lease of the property for railroad purposes only would absolve the defendants from the liability to perform, are questions which do not arise upon the petition and may be reserved for that contingency. It might also become a question whether a sale or lease agreed upon for the express purpose of defeating the contract could be upheld in equity.

Butler & Marshall, for plaintiff.

W. 0. Henderson, for P., C., C. & St. L. Ry. Co.

J. F. Wilson, for C., C., C. & St. L. Ry. Co.

Where the violation of the contract is flagrant and the injury serious, the court will not withhold a decree in specific performance merely for the reason that there is a possibility, but no pending probability, of its becoming inoperative by a change in the relation of the parties.

As is said by Judge Mellvaine, in D., X. & B. R. R. Co. v. Lewton, 20 O. S., 411, “Whether a court of equity has power to decree and means to execute its decrees in such eases are the ultimate questions in this case, and not preliminary ones.” If the. want of power does not necessarily appear from the facts pleaded, the court should not be called upon to determine that question upon demurrer to the petition.

The demurrer to the petition will, in each case, be over-' ruled.


source: Caselaw Access Project

license: Public Domain

text:
    BAILMENT.
    [Circuit Court of Jefferson County.]
    A. W. McDonald & Company v. John A. Miser.
    Decided, November Term, 1903.

      Burden of Proof — In an Action Against Bailees.

    In an action against the bailees of a team of horses,, for causing the death of one of the horses and injurying the other by negligently driving the same, the burden is on the bailor to prove negligence, and it is not shifted by showing the horses were sound when delivered to the bailees; the bailor being immediately informed by the bailees of the circumstances attending the injury to the team.
    Cook, J.; Laubie, J., and Burrows, J., concur.
   The action below was to recover damages for negligently causing the death of a horse of plaintiff and for injury to another. Plaintiff hired defendants a team of horses to do certain hauling upon their contract of building a section of railroad. The averment of the petition is:

“That by reason of placing said horses in the hands of a different driver than the one agreed upon, which driver was incompetent to handle and properly care for said horses, and by reason of the negligence of said defendants in handling said horses and immoderately driving said horses and failing to take proper care of said horses one of said horses was killed and the usefulness of the other horse was greatly impaired for some time thereafter, to the damage of the plaintiff in the sum of $200. ’ ’

To this petition there was a general denial — also an averment in the answer that the horses were unfit to perform the services for which they were hired. This averment was denied in the reply. The evidence showed that one of the horses died while it was being driven and that the other horse was also in bad condition when it was returned to plaintiff. The evidence further tended to show that the servants of defendants drove said horses after having knowledge that the horse that died was entirely unfit to be driven, and that the other was fagged out and not in good condition. The evidence further showed that plaintiff was immediately informed of the death of the horse and the manner in which it died, its symptoms, etc.; the claim being made by defendants servants that they had in no manner abused the horse and that the symptoms indicated colic which had been occasioned by previous bad feeding on the part of plaintiff.

The case under the evidence was not a clear one as to negligence and the jury would have been justified in finding for either plaintiff or defendant under the issues made.

Under these issues and this evidence the court charged the jury at request of plaintiff as follows, upon the question of the burden of proof.

“If you find from the evidence that the team of horses was in good condition when they were delivered to the defendants to be used as on the occasion mentioned in the plaintiff’s petition, and one of them was dead and the other injured when returned, the burden of proof is upon the defendants to show that they used said team in a careful manner and as an ordinarily prudent man would have used them under similar circumstances. The law is that when property is received by the hirer thereof in a good condition and returned in a bad condition or not returned at all, the person so hiring said property is presumed to have acted negligently.”

In the general charge the court further said to the jury:

“Now the burden of proving the agreement set forth in the petition as to the way the horses were hired, etc., is upon the plaintiff. He must satisfy you by a preponderance of the evidence that what he sets forth in that regard is the truth; but the burden of proving that the defendants, under the circumstances, exercised ordinary care and diligence in the use and management of this team is upon the defendants under the circumstances, and also the burden is upon the defendants of proving that the plaintiff was negligent in the manner set forth' by defendants, and that such negligence contributed directly to produce the injury to such team. ’ ’

As stated the action was for negligently driving the horses. It was not for conversion of the horses or either of them, and whatever may be the rule as upon whom the burden rests in an action for conversion by the bailee, if it is different, would not apply in this ease.

It is insisted by counsel that in all eases of bailment where the property is delivered in good condition and destroyed or returned in an impaired condition that the burden rests upon the bailee to show that he was without fault; that the rule arises from the necssity of the case, as the bailor would have no knowledge as to the manner in which the property was taken care of.

It may be conceded that where property is delivered to the bailee in good condition and it is destroyed or returned in an impaired condition and he gives no reason for its destruction or impairment, that that would make a prima facie case of negligence. The mere fact that he received it in good condition and did not so return it, would be some evidence of negligence, especially so when he gives no reason why he did not return it in good condition, and, were there no other evidence, would justify a jury in finding that the defendant was guilty of negligence in its destruction or impairment; but we do not think that in a ease like this where there is a large amount of evidence, part of it tending to show that the bailees were guilty of negligence and some that they were wholly without fault, that it is proper to charge the jury that the burden rests upon the defendants bailees to show by a preponderonce of the evidence that they did not act negligently in the use of the property.

We are aware of the fact that there are courts worthy of great consideration that so hold. Cummins v. Woods, 44 Ill., 416 (92 Amer. Dec., 189) and cases in the note.

It seems to us that in the cases so holding that there is confusion in confounding evidence making a prima facie case or the burden of evidence, as it is sometimes called by text-writers, and the burden of proof in the ease, and upon whom it rests.

The party upon whom the burden of proof rests is made by the pleadings and continues from the first stage of the trial to its end. He who affirms must prove. The burden of evidence shifts but the burden of proof never shifts. Mr. Taylor, in his work on Evidence, Vol. I, page 276, says:

“It is hardly necessary to say that the burden of establishing a ease does not shift. It can not shift simply because the issue has been fixed once for all by the pleadings and the rules of pleading do not permit it to be altered, during the progress of the trial on those pleadings.”

In Willett v. Rich, 142 Mass., 365 it is said:

“We understand the doctrine to be well settled in this commonwealth that the burden of proof never shifts, and we think in the case we are discussing and in the case at bar, the burden to show negligence was upon the plaintiffs from the beginning and remained on them throughout the trial. ’ ’

That ease was an action against a warehouseman. They received goods in good condition and did not return them in the same condition for the reason that they were injured by the fall of the warehouse. The court decided:

“In an action of contract against a warehouseman for a failure to keep safely goods entrusted to him, if it appears that the goods were returned in a damaged condition and that the damage was caused by the fall of the warehouse, the burden of proof is on the plaintiff to show that such damage was caused by the negligence of the defendant or his servants.”

In the opinion, Morton, C. J., says:

“The fundamental rule as to the burden of proof is, that whenever the existence of any fact is necessary in order that a party may make out his case or establish a defense, the burden is on such party to show the existence of such fact. In Stephen’s Digest of the Law of Evidence, the rule is stated to be ‘Whoever desires any court to give judgment as to any legal right or liability dependent on the existence or non-existence of facts which he asserts or denies to exist, must prove that those facts do or do not exist. Steph. Ev. (Amer. Ed.), 175’.”

Again the learned judge says:

“It may be that where there is a refusal to deliver the plaintiff may make out a prima facie case upon. proving this fact, because such refusal, if unexplained, is some evidence of the breach of the contract. But this does not shift the burden originally on the plaintiff to prove a breach of contract. ’ ’

It should be stated that the declaration in this case contained two counts and was tried on the second which contained the averment that the goods were injured through the negligence of defendants and their servants.

The case of Clafflin et al v. Meyer, 75 New York Rep., 260, was an action against a warehouseman for failure to deliver goods deposited with him which had been stolen from the warehouse, and the court held:

“In an action against a warehouseman for refusal to deliver goods entrusted to him, where the refusal is explained by the fact appearing that the goods were lost by a burglary, the burden is upon the plaintiff to establish affirmatively that the burglary was occasioned by, or was not prevented by reason of some negligence or omission of due care on the part of defendant; the court will not assume in the absence of proof that the loss was the result of his negligence.
‘1 The warehouseman in the absence of bad faith is only liable for negligence, and one bringing an action against him for the loss of goods must allege and prove negligence; this burden is never shifted; if plaintiff prove demand and refusal to deliver, this unexplained is prima facie evidence of negligence; but if it appear that the goods have been lost by theft, plaintiff must show that the loss arose from the negligence of defendant.
““Where, therefore, the facts proven are as consistent with due care as with want of it plaintiff can not recover. ’ ’

In the opinion Hance, J., says:

“It will be seen as the result of these authorities that the burden is ordinarily upon the plaintiff alleging negligence to prove it against a warehouseman who accounts for his failure to deliver by showing a destruction or loss from fire or theft. It is not of course intended to hold that a warehouseman, refusing to deliver goods, can impose any necessity of proof upon the owner by merely alleging as an excuse that they have been stolen or burned. These facts must appear or be proven by reasonable certainty. Nor do we concur in the view that there is in these cases any real shifting of the burden of proof. The warehouseman in the absence of bad faith is only liable for negligence. The plaintiff must in all cases, suing him for the loss of goods, allege negligence and prove negligence. This burden is never shifted from him. If he proves demand upon the warehouseman and his refusal to deliver, these facts unexplained are treated by the court as prima facie evidence of negligence; but if, either in the course of his proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence of the warehouseman.”

A clear distinction between a prima facie case or the burden of evidence, and the burden of proof, is made in the ease of Oaks v. Harrison, 24 Ia., 179, referred to in Taylor on Evidence, 1st Volume, page 276, under the heading “Burden of Evidence.” It is there said:

‘1 The duty of introducing evidence to prove or prevent proof of facts in issue is not, like the burden of establishing, a resultant of the pleadings. Its position, as between the parties, is determined, not by the state of the pleadings, but by the logical state of the case. The issue being fixed, the logical interest of one party is to produce an affirmative conviction on the part of the tribunal. It is the object of the other party to prevent it. Such a state of the evidence as would, if undisputed, produce such affirmative conviction, constitutes a prima facie case. It merely repeals the statement, therefore, in another form, to say that the interest of one party is to establish such a prima facie case, and of the other party to destroy it, either by establishing a prima facie case of his own, or by reducing the probative force of the opposing case below the required standard. Should this effort succeed, the necessary consequence is that the burden or necessity rests on the first pleader to introduce additional evidence with a view to strengthening his ’former proof into a prima facie ease, either by disproving the facts alleged against it, or by proving additional facts. If, when the evidence on both sides is all in, the pleader who has the affirmative of the issue remains with what the tribunal considers the equivalent of a prima facie case, he succeeds; otherwise not. The necessity for having the final tip of the scale in his favor has not changed since the pleadings placed it on him, however many times the probative scales may have changed in their balance. When upon all the facts, the case if left in equipoise, the party affirming must fail.”

Then the learned author on evidence, under the head of ‘ ‘ The Burden of Evidence Shifts, ’ ’ says:

“It follows from what has been said that this burden of introducing evidence to prove or disprove a prima facie ease may, and frequently does, change from one side to the other. A fair test of where it rests at any particular stage of the ease is to answer the question: Against whom would the tribunal decide if no further evidence were introduced? Applying this test, it is obvious that at the opening of the case the burden of establishing and the burden of evidence rest on the same person (Vriets v. Hagge, 8 Iowa, 163, 192). Upon the establishment by him of a prima facie case, while the burden of establishing remains, the burden of evidence is obviously shifted (Powers v. Russell, 13 Pick., 69, 77; Tolson v. Inland, etc., Coasting Co., 6 Mackey, 39; Penitentiary Co. v. Gordon, 85 Ga., 159; Ketchum v. American, etc., Express Co., 52 Mo., 390). The two burdens are distinct things. One may shift back and forth with the ebb and flow of the testimony; the other remains with the party upon whom it is cast by the pleadings — that is to say, with the party who has the affirmative of the issue (Scott v. Wood, 81 Cal., 398).-
“During the progress of a trial it often happens that a party gives evidence tending to establish his allegation, sufficient it may be tq establish it prima facie, and it is semetimes said that the burden of proof is then shifted. All that is meant by that is, that there is a necessity of evidence to answer the prima facie case, or it will prevail, but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial (Heinemann v. Heard, 62 N. Y., 448, 455). The Supreme Court of Texas, after saying that the fact that the negative form of the issue does not determine the burden of proving, add, ‘Much less does the fact that a defendant is forced to maintain the affirmative of some fact, in disproving the plaintiff’s case, shift upon him the burden of proof’ (Clark v. Hills, 67 Texas, 141; Small v. Clewley, 62 Me., 155; Jones v. Simpson, 116 U. S., 609; Harris v. Harris, 154 Pa. St., 501.” To the same effect see Lawson on Bailments, page 543; Amer. & Eng. En. of Law, (2d Edition), 3d Vol., page 750.

In the case at bar as we have said the plaintiff averred in his petition that the death of one horse and the injury to the other was caused by the negligence of defendants and their servants; this was denied by the defendant and the further averment that the horses were unfit for the services for which they were hired. The fact that the horses were in good condition when hired and were not so returned possibly might make a prima facie case of negligence against defendants which they would be required to meet by evidence, but that prima facie case was met by evidence strongly tending to show that it was no fault of defendants that one of the horses died and the other was impaired, and that it arose from the condition of the horses when hired.

It then became the duty of the plaintiff to strengthen his prima facie case by showing the defendants were negligent, or overcome the proof offered by the defendants, and when the whole evidence was in under the pleadings the greater preponderance of evidence should have been in favor of the plaintiff and the court should have charged the jury that the burden of pi’oof showing negligence was upon the plaintiff instead of the reverse. Directly in point is the case of Maloney v. Taft, 15 Atlantic R., 326, wherein it is held:

Henry Gregg and J. C. Bigger, for plaintiffs. .

D. M. Gruber, for defendant.

“In an action on the case for negligence against the bailee of a horse for hire, the burden is on the plaintiff to prove negligence, and it is not shifted by merely showing that the horse was sound when delivered to the bailee, and when returned, that it was injured in a way that does not ordinarily occur without negligence. ’ ’

A misdirection of the jury as to the burden of proof is error for which the judgment will be reversed at the instance of the party prejudiced thereby (McNutt & Ross v. Jacob Jaufman, 26 O. S. Rep., 127). Judgment of court below is reversed for error in charge and cause remanded for new trial.


text:
    VIOLATION OF CONTRACT TO TRANSFER BUSINESS AND GOOD WILL.
    [Circuit Court of Cuyahoga County.]
    Horace W. Power v. George G. Brown.
    Decided, November 30, 1903.

      Contract — Divisibility of — Where an Insurance Agent Undertook to Transfer his Business to Another• — And not to Solicit this Business in the Future for an Outside Company — Measure of Damages for Failure to Comply with Latter Provision.

    B. contracted with P. to use his best efforts to place the insurance business which he then had with the company represented by P., and to turn over his good will to P. and his interest in all renewals after the first year, and not to solicit said business in the future for any outside company. B. carried out this- contract to the extent of transferring the business to P. and carried out the remainder of the contract in part, but it is complained that he solicited and obtained for another company a comparatively small part of the business which P. had received from him or through his efforts. Held:

    1. That the contract is divisible, and should not be treated as an entirety.
    2. That the only right accruing to P., through the failure of B. to abide by the latter part of the contract, is a claim for compensation in damages for the amount of business thus diverted from his agency.
    3. It is for the jury to say, in fixing the damages to be recovered in such a case, whether the commissions which went to an outside company would have gone to P., in the absence of efforts on the part of B. so to divert them.
    Marvin, J.; Hale, and Winch, J., concur.
    Error to the court of common pleas.
   Suit was brought in the court of common pleas by Brown against Power, claiming to recover a balance due to him for commissions which had been put into the hands of Power upon certain insurance policies issued by Power to parties who had been taking their insurance from Brown and by his influence had been induced to take policies in companies represented by Power. Both Power and Brown were insurance agents in the city of Cleveland.

On or about the 15th day of November, 1897, Brown, deeming it best for some reason to have parties who were insured in the company represented by him re-insured in some other company, entered into an arrangement with Power by which he (Brown) was to transfer certain business to Power. This is evidenced by a writing, in the following words:

“Confirming my proposition, I propose to use my best efforts in placing this business with your company, and on all business so placed and premiums collected, you to allow me full general agent’s commission as per your contract.
And in consideration of said full general agent’s commission I agree to turn over my good will and interests in all renewals after the first year, and agree not to collect said business in the future for this or any other company.”

This was signed by Brown and accepted by Power.

Pursuant to this contract Brown turned over a considerable amount of business to Power and received from Power a considerable amount by way of commissions on premiums. It is stipulated in the record that the amount of commissions provided for in this contract for the first year, which Brown would be entitled to in ease he has not forfeited his right by reason of facts hereinafter to be stated, is $786.11, with interest from October 27, 1899.

It is further stipulated that Brown, after the making of the contract between himself and Power, became the agent of the Maryland Casualty Company, and as such agent solicited and secured quite a number of natural persons and corporations to take out policies of insurance in said last named company who had been insured in the company which Brown represented at the time he made his contract with Power, and who, through his influence, had turned over their insurance to the company . represented by Power.

The defense set up is that this conduct of Brown in thus soliciting and securing parties to insure with him in the Maryland Company was such a violation of the contract entered into between him and Power as to bar him from any recovery and to entitle Power to recover back the commissions which he had already paid to Brown.

On the other hand, the claim is made that the contract was a divisible one; that Brown for one single consideration undertook to do two separate things; that he did one of these two things, to-wit, in the language of the contract, used his best efforts in placing the business of insurance which he then had with the company represented by Power; that the other thing which Brown undertook to do, to-wit, turn over his good will and interests in all renewals after the first year and not to solicit said business in the future for any other company, he failed to do; that this failure to do the two things is not a defense to the claim made for doing the first thing, but is only a ground for damages to be asserted by Brown and available in this action only as a counter-claim to whatever claim Brown has for doing the first thing, to-wit, the $786.11. This latter view was taken by the trial court and the jury were charged accordingly, and properly charged if this view of the case is correct.

There remains, therefore, the question of whether this contract is to be treated as an entirety or as divisible. We hold that it is divisible. When Brown used his best efforts to place the business which he had with the company represented by Power, he did the first thing which he undertook to do.

Suppose that he had done nothing in violation of any stipulation of his contract until the expiration of one year from its date after having turned over the business, so far as he was able, to Power — could it be doubted that he would then have been entitled to the commissions for that one year which are provided for in the contract; and that if thereafter he had solicited the same business for his Maryland Company Power would have been remitted to his claim for damages because of such actions on the part of Brown? The time for which Brown contracted that he would not solicit such business was unlimited, and it would seem that it must have been in the contemplation of the parties that if Brown violated his contract by soliciting said business in the future he was to be liable in damages to Power. If this is correct, we are unable to see that his violating the contract in this manner before the expiration of the year gave Power any remedy against him which he would not have had if the violation had taken place after the expiration of the year.

The case of Burchhardt v. Burchhardt, 36 O. S., 261, is in point. That was a suit brought by one who had sold the property and good will to his partner in the business of the co-partnership. By the contract the plaintiff, among other things, agreed that he (the plaintiff) would not thereafter do business by or under the name of Burckhardt & Co., which was the name of the co-partnership between the parties, in the city of Cincinnati. Immediately after the execution of the contract the plaintiff did enter into business in Cincinnati under the name and style of L. Burckhardt & Co. In purchasing the property the defendant had given to the plaintiff his promissory notes secured by a mortgage. The suit was for a foreclosure of this mortgage. The defendant, for .answer, set up that the plaintiff, having violated his contract, was not entitled to any payment upon the notes and mortgage. The court held that tins was not a defense to the action, but that if the plaintiff had violated his contract such violation could only be made available to the defendant as a counter-claim, and on page 280 uses this language:

“The counter-claim to which the defendant was entitled was one for damages only. There was no failure of consideration, in the proper sense of the term, which could be available as a mere defense.”

The case of Courcier & Ravises v. Thomas Graham, 1 Ohio, 330, is also in point. The opinion, which is by Judge Hitchcock, is exhaustive, and the reasoning is sound. In this opinion there is a complete discussion of the matter of mutual and independent covenants in the contract. Many cases are cited in the opinion in support of the views expressed, and we think the ease fully justifies the view of the ease now under consideration taken by the court below.

If the contention of the defendant here is sound, then Brown was entitled to nothing for the business which he had transferred to Power, because, after transferring it, he solicited and obtained for the Maryland Company a comparatively small part of the business which Power got from him or by his efforts. Before this suit was brought Brown had received a considerable amount by way of commissions on this business, and, as before stated, was still entitled to more than $800 on account of such commissions, except for the fact that by his solicitation, in violation of his agreement, he had obtained some of it for his new company, and not only should he be barred of a recovery here but he should be adjudged to repay to Power all that he (Brown) had already received; and yet the amount of business that he had taken from Power was but a small part of that whi'ch Power had received from him, and it would seem, upon principles of justice between the .parties, that Power’s only right should be compensation in damages for the amount of business so diverted from his agency to that of Brown.

Complaint is made that the court erred' in. its charge to the jufy on the measure of damages to be allowed to Power. The court used this language in the charge, speaking of the measure of such damages:

“The amount of such injury or loss, if any, which you find that the defendant thereby sustained, will be the measure of the damages which the defendant is entitled to recover on his counter-claim and cross-petition, in ease you find for him thereon. In arriving at the amount of such damages, if any, you may consider in connection with the other facts and circumstances in the case as found by you the amount of commission received by the plaintiff upon the premiums for policies of insurance solicited and obtained by him from persons whose policies had been transferred to the Travellers Insurance Company by or through the instrumentality of the plaintiff, and it is for you to say from the testimony whether the commissions on such premiums would otherwise have been received by the defendant. Although you may not be able to determine accurately the amount of damages, if any were sustained by the defendant, yet if from all the testimony you are able to estimate .with reasonable probability the amount of such damages, you may thus estimate the same.”

Hoyt, Dustin & Kelley, for plaintiff in error.

Kline, Carr, Tolies & Goff, for defendant in error.

This would seem to be a fair statement of the means for determining the measure of the defendant’s damages, and perhaps would not be complained of but for what follows, in these words:

“If from all the testimony and the facts and circumstances of this case you are unable either to find or to estimate with reasonable probability the amount of damages, if any, sustained by the defendant, then.the defendant would be entitled to recover only nominal damages, that is, five or six cents, or some other small sum.”

"Whether this last quotation properly stated the law or.not, it is manifest from the verdict in the case that it did not affect the verdict of the jury. If that verdict had allowed to the defendant only nominal damages we should be called upon to determine whether this language was erroneous or not, but in view of the fact that the jury found that they could determine, and did determine the amount of the defendant’s damages.to be nearly $200, it is clear that this part of the charge did not affect the verdict.

The judgment of the c'ourt of common pleas is, therefore, affirmed.


text:
    CONTRIBUTORY AND CONTINUING NEGLIGENCE.
    [Circuit Court of Lucas County.]
    The Lake Shore & Michigan Southern Railway Company v. William Callahan.
    Decided, June 20, 1903.

      Negligence — On the Part of a Section Hand — Injured by a Baching Locomotive — Contributory Negligence and Continuing Negligence— Answers to Interrogatories Inconsistent With Verdict.

    1. Where a railroad section hand, in obedience to a direction by his foreman, starts to walk along the track with his back to a locomotive two or three hundred feet away, but without observing whether the engine is backing toward him or standing still, and walks along the track for seventy-five feet without paying any further regard to the engine, which is in fact backing toward him and is struck by it and injured, he is guilty of contributory negligence.
    2. In a ease where the negligence of the one injured is concurrent and continuing to the moment of the injury, the doctrine of the “last chance” does not apply, and he can not recover notwithstanding there may have been negligence upon the part of his foreman or those upon the engine in failing to warn, or use other possible means to save him from his peril.
    Hull, J.; Parker, J., and Haynes, J., concur.
   This proceeding in error was brought to reverse the judgment of the court of common pleas. The defendant in error, who was the plaintiff below, brought his action against the railway company to recover damages for personal injuries, which he claims he sustained on the 21st day of January, 1901, on account of and through the negligence of the railway company. He was awarded a verdict of $1,500 by the general verdict of the jury; and there were special findings of the jury made in answer to interrogatories at the request of both plaintiff and defendant below.

A motion was made by the railway company after the verdict for a judgment in its favor, notwithstanding the general verdict against it. The motion was overruled by the court below and judgment entered against the railway company for the amount of the verdict, $1,500; and it is to reverse this judgment that the petition in error was filed in this court.

It is claimed that the plaintiff in error is entitled to a judgment in its favor in this court upon the special finding of the jury, as well as a reversal of the judgment of the court below. And the only point urged here by the plaintiff in error is this one — that upon the special findings of the jury it was entitled to a judgment, notwithstanding the general verdict, and that it should have a judgment entered in its favor here.

The plaintiff, and when I say plaintiff, I mean the plaintiff below, William Callahan, was a section man in the employ of the railway company on the day of his injury, and was working under the direction of one John Rabie, who was acting as foreman, nearly opposite the union depot in the city of Toledo and almost directly opposite the dining-room which is connected with the union station. Callahan and the other men in his gang were at work repairing the track at this point, a portion of the eastbound main track, which lies outside of and to the south of the sheds under which the passenger trains ordinarily run. They were at work there repairing the track, and in doing their work it became necessary to have a wrench and bolt which were lying between the rails of this track, about seventy-five feet eastward of where they were at work, and Callahan was directed by Rabie, his foreman, to go and get this wrench and bolt, and he started eastward for that purpose.

Shortly before this a passenger train had come in from Cleveland, which was due in Toledo at the station at 2:10 p. m. The engine had been unhitched from the train for the purpose of taking it to the coal dock or to the round house, and it had been run west about a quarter of a mile to what is known as the Broadway bridge, and was there switched and thrown upon this east-bound main track where these men were at work, and from this point, near the Broadway bridge, was then backed eastward, starting about a quarter of a mile west of where Callahan was at work, the track being clear and straight.

Callahan, when he started after the wrench and bolt, walked down the east-bound main track between the rails; as he started to walk between the rails he looked west, he says, and saw this locomotive, which was there, with its rear'end toward him; he says it was some two or three hundred feet distant, and he thought it was standing still. Other witnesses place it as near as seventy-five or one hundred feet. He proceeded eastward along the east-bound main track, without looking further for the locomotive or making any further attempt to ascertain whether it was moving or not. When he reached the place where the wrench and bolt were, according to his testimony, he stooped over to pick them up, and just as he was in the act of stooping, with his back toward the locomotive, the rear end of the locomotive struck him, and he was thrown under the rear of the tender and dragged or propelled about one hundred and forty-seven feet, and sustained injuries; three fingers of one hand were cut off and he was otherwise injured about his person.

He claims that he heard no signal, either by bell or whistle, and did not hear the locomotive approaching, and he says he thought the locomotive was standing still when he started down the track, and that he did not know that it would start. And it is further claimed by him that it had been the custom for the foreman of such a gang to warn the men by calling out upon the approach of a train; and that he supposed, if a train approached from the rear while he wras going down the track, he would be given such warning. He claims further that no such warning was given by the foreman then in charge, or, if one was given, he did not hear it.

It is also claimed that a man should have been placed upon the rear of the engine to notify men upon the track. However, this is not especially relied upon. But the grounds of negligence generally set up in the petition are that no bell was rung on this locomotive, or whistle blown; that the foreman in charge of the men did not keep a lookout for approaching trains or locomotives, and did not warn Callahan as he walked down the track; and that the engineer and foreman upon the locomotive were negligent in not keeping a proper lookout for men upon the track, and in not stopping so as to prevent injuring Callahan after they discovered he was upon the track, or might have discovered him by due care, the claim being that by the exercise of ordinary care the engineer might have discovered Callahan upon the track in time to have stopped the locomotive and avoided injuring him.

The fireman and engineer both testified that they did not see Callahan upon the track. The testimony of the engineer is, and it seems to be uneontradicted, that it would not be possible for him to see a man on the track from the engine nearer than 135 or 140 feet from the tender, on account of the view being obstructed by portions of the locomotive. And it is not claimed here that either the fireman or the engineer saw Callahan upon the track; at least there is no evidence that they did. It is claimed, however, that, by the exercise of ordinary care they might have seen him. But it is not claimed that he was injured through any wanton or willful act of the engineer or fireman, or any reckless act; but the claim of the plaintiff is based upon the alleged negligence on the part of the engineer and fireman in not seeing him and in not giving a signal, and the failure to give warning by the foreman, as has been stated.

Any extended review of the evidence is unnecessary, on account of the special findings of the jury. The court, at the request of the railway company, submitted to the jury four interrogatories, which were answered. They are as follows, with the answers:

“1. After engine 146 came out upon the east-bound main track and began to back easterly, did it stop so backing until after it struck Callahan ? ’ ’ Ans. 4 4 No. ’ ’
“2. Was the bell upon engine 146 ringing as it was backing east on the east-bound main track, as and when Callahan was struck ? ’ ’ Ans. “Yes.”
“3. Did Engineer Sawyer, whilst backing his engine on the east-bound main track, and as and when Callahan was struck, exercise ordinary care in keeping a careful lookout in the direction in which his engine was backing?” Ans. “No.”
“4. Before Callahan started to walk east upon or at the side of the east-bound main track could he, by the exercise of ordinary care, have observed this engine a short distance westerly of him, moving towards him upon the east-bound main track ? ’ ’ Ans. “Yes.”
“6. After Callahan started to walk east upon or at the side of the east-bound main track, did Rabie, the other section man, call out to him to ‘watch out’ in time and in such manner that by the_exereise of ordinary care he would have heard the warning and avoided the injury?” Ans. “No.”

And upon the request of the plaintiff below, two interrogatories were submitted to the jury, which were answered. They are as follows:

“2. When Callahan started to walk east upon the track, did he exercise reasonable and ordinary care for his own safety up to the time the engine struck him, considering that it was customary to ring the bell of a coming engine and for the foreman over him to call out a warning of its approach?” Ans. “Yes.”
“4. Could the engineer of the engine, by exercising reasonable and ordinary care, have stopped the ehgine in time to avoid injuring Callahan after he knew, or should have known of Callahan’s danger by the exercise of ordinary care?” Ans. “Yes.”

Counsel for the plaintiff in error claims that upon the answers to interrogatories numbered two and four, submitted by the railway company, the railway company is entitled to a judgment in its favor, notwithstanding the general verdict and also not withstanding the answers to the other interrogatories submitted by both the plaintiff below and by the defendant below.

It is claimed by the defendant in error, taking into consideration all the interrogatories which were answered by the jury, which might be said to constitute a special verdict, or that they are in the nature of a special verdict, that the judgment of the court below should be affirmed, and its action in refusing to enter judgment in favor of the railroad company should be affirmed.

Defendant’s interrogatory No. 2, with the answer, has been read, but I will read it again:

“2. Was the bell upon engine 146 ringing as it was backing east on the east-bound main track, as and when Callahan was struck?” Ans. “Yes.”

So, upon this special finding of the jury, which is sustained by the evidence in the case, the question as to whether the bell upon the locomotive was being rung as the locomotive approached Callahan is settled and all doubt is removed, the jury finding specially that it was rung, and Callahan must be judged and his rights determined npon the hypothesis that the bell was in fact ringing when he started npon the track eastward and while he was walking npon the track and until he was struck by the locomotive.

Interrogatory No. 4 and the answer thereto I will read again, as this is the remaining one upon which the plaintiff in- error relies

“4. Before Callahan started to walk east upon or at the side of the east-bound main track could he, by the exercise of ordinary care, have observed this engine a short distance westerly of him, moving towards him upon the east-bound main track?” Ans. “Yes.”

This special finding of the jury is sustained by the evidence, and it is established then that at the time Callahan started to walk eastward upon the track, he could, by the exercise of ordinary care, have observed this engine. In fact, he testified that he did see the engine when he started east upon the track, some two or three hundred feet westward of him, but he thought it was standing still. The finding of the jury, however, is, by the answer to interrogatory No. 4, “Yes,” to-wit, that “he could, by the exercise of ordinary care, have observed this engine a short distance westerly of him, moving towards him upon the east-bound main track.” We understand that to mean that the jury finds that by the exercise of ordinary care he could have observed that the engine was moving toward him upon the eastbound main track when he started to walk easterly. If there is any question about that, we hold, as a matter of law, that when he saw the locomotive upon the east-bound main track not more than two or three hundred feet distant from. him. when he started, that it was his duty to look carefully enough to ascertain whether the locomotive was moving or standing still. When he turned his back upon this locomotive, there was imposed upon him at least the same duty that is imposed upon the traveler who is about to cross a railway track; that is, the duty of using his senses, by looking and listening to ascertain whether a train or a locomotive is approaching, and if the circumstances are such, as have been laid down by the Supreme Court of this state many times, that by looking and listening, and in the exercisc of ordinary care, he might have seen or heard the train, and, he is injured, on account of not seeing or hearing it, he can not recover for the reason that he must be held, as a matter of law, to be guilty of contributory negligence; and we think it is not going beyond the law to say that if a man sees a locomotive upon the track within two or three hundred feet of him, it is his duty, as a matter of law, to look carefully and ascertain whether the locomotive is moving or standing still.

Under this special finding of the jury and upon the admitted facts, it appears that when plaintiff turned eastward upon this track he saw this locomotive not more than two or three hundred feet away moving toward him, and, under finding No. 2 of the jury, that the bell upon the locomotive was ringing at the time.

It is claimed by the plaintiff in error that under this state of facts, Callahan was guilty, as a matter of law, of negligence contributing directly to his injury, at the time of his injury.

Upon the other hand it is claimed by the defendant in error that notwithstanding these facts, the railway company was liable on account of the negligence of the engineer and fireman in not observing Callahan upon the track; and that they were bound to use ordinary care to observe him, and the jury having found that the engineer might have seen him by the exercise of ordinary care, that therefore the railroad company is liable, notwithstanding the contributory negligence of Callahan; that the case, as. stated, comes within the doctrine of the “last chance,” as it is called by some authorities; that is, when a party, by his own negligence, has put himself in a place of danger, the party charged with injuring him is liable if, by the exercise of ordinary care, he might have avoided injuring him after he discovered the other party was. so in a place of danger, and that the party would be liable under such circumstances, if he did not exercise ordinary care, although the party injured was negligent or had been • negligent in getting himself into such a place of danger.

It has been decided by the Supreme Court of this state and by other courts that, although a party has placed himself in.a dangerous position, by reason of his own negligence, that he may still recover against another person, who, having discovered his situation, does not use ordinary care to prevent injuring him, the doctrine being, that although a man, by his own negligence, has placed himself in such a position, he can not be injured with impunity; that he is still entitled to the protection of the law; and any one who discovers him in such a situation is bound to exercise ordinary care toward him. This doctrine was laid down by the Supreme Court of this state in the case of Railway Co. v. Kassen, 49 Ohio St., 230, where a man on an excursion train running along at night near Hamilton, Ohio, walked off the back end of the train and fell on the track, and on account of his injury was rendered unconscious. The train passed on without any effort to protect the man, or without stopping to pick him up, and failed to send any telegram from the next station to the following train which came along in about an hour and ran over the man and killed him. The Supreme Court held in that case that although, by his own negligence, deceased had placed himself in such a situation of peril, he was, notwithstanding that, entitled to have exercised toward him ordinary care for his protection. The court say in the first paragraph of the syllabus:

1. It is a well settled rule of the law of negligence, that the plaintiff may recover, • notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

And the court say in the opinion, on page 23.9, quoting from the case of Kerwhacker v. Railway Co., 3 Ohio St., 172:

“ ‘When the negligence of the defendant, in a suit, upon such ground of action, is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury, the action is maintainable. ’ And such is the well settled law. The negligence of the plaintiff’s intestate, in stepping or falling from a train while moving at a high rate-of speed, was only the remote, and not the proximate cause of his death, the proximate cause being the omission of the defendant to use proper care, after having become aware of the danger to which his negligent act had exposed him.”

But we think it is well settled that where the negligence of the party injured is continuous and is, in fact, continuing up to, during and at the very time of his injury, and if such negligence contributes directly to his injury, he can not recover on account of negligence of another.

It is needless to cite authorities to sustain the general proposition that where one’s own negligence directly contributes to his injury, he can not recover on account of the negligence of another, for the law will not undertake to apportion the degree of negligence as between the parties. As was said by the Supreme Court in the case of Schweinfurth v. Railway Co., 60 Ohio St., 215, in the second paragraph of the syllabus:

“In an action for negligence, it is not error to refuse an instruction that the defendant can not be held liable though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way, to the injury of which he complains. Unless the negligence of the person injured contributed directly to, or was a proximate cause of the injury, it does not preclude a recovery.”

And this proposition is discussed at length and authorities cited in the opinion. It was held that the request to charge was defective for the reason that it did not contain the language that the negligence complained of must have contributed directly to the injury. But if the negligence of the person injured is concurrent with the alleged negligence of the party charged with doing the injury, we hold the law to be that he can not recover, and we find no authority contrary to that doctrine.

In this case we think that the negligence of Callahan did contribute directly to his own injury, and it continued during all the time he walked upon the track, up to, during and at the; very time that he was injured by the locomotive. He was bound by the law of this state and the general law of the land to keep a lookout for this locomotive, which he knew was upon the track, and which we find he knew, or by the exercise of ordinary care would have known, was approaching toward him. He therefore went upon the track and turned his back upon a locomotive approaching from behind him, with the bell ringing, and continued to walk upon the track without making any effort whatever to ascertain how near this locomotive was approaching to him. He says he relied upon the foreman to give a warning to him, if the locomotive approached near enough to ’ threaten him with danger.

We are of the opinion that he could not rely upon that; that the fact that it may have been the custom for the foreman to give warning by calling out did not relieve him of his duty to exercise ordinary care in looking out for the locomotive, any more than it excuses a traveler upon the highway, when he approaches a crossing, from looking and listening, because a signal by bell or whistle is not given. That has been held many times by our Supreme Court. Seeing this locomotive approaching, he knew he was in a place of danger when he was walking upon the track. He was not required to walk between the rails; he might have walked upon the other track, or at the side of the track. And there can be no question but that it was his duty to keep a constant and vigilant lookout for this locomotive approaching from behind him; and no other view would properly protect human life. Such a rule is necessary for the protection of men who are in the habit of going into dangerous places, and the law requires the exercise of such vigilance under such circumstances; and this is required also for the protection of the lives of the men operating the trains, and for the protection of passengers on the trains. The case of Baltimore & O. Ry. Co. v. Depew, 40 Ohio St., 121, was a ease where a party had arranged with a railroad company for the transportation of-himself, his family and his household goods to some western point. He was at or about the station when a train upon the railroad track started down the track; the train had been standing still. He relied upon the men operating the train giving him a warning by some signal, either by bell or whistle, when it started. They did not, and the train ran upon him and injured him. He kept no lookout for the train, to see whether it was approaching him or not. And the Supreme Court held he could not recover. They say in the syllabus:

“Where a locomotive with cars attached is standing on a railroad track near a railroad station or other place where cars are frequently moved forward or backward, a person who goes upon the railroad track, seeing the locomotive and cars, and knowing that they would, within a few minutes, be moved toward him, and walks upon the track away from the train without watch of its movements, where there was nothing to hinder him from seeing the movements of the train in time to avoid danger, an’d when he could have gone in the same direction without walking on the track, is guilty of such negligence as will prevent his recovery for an injury caused by the carelessness or unskillfulness of the employes of the railroad, not amounting to willfulness on their part.
“A person so walking upon a railroad track is not free from negligence which will prevent his recovery for an injury so caused if he omits to keep watch of the movements of the train, relying upon a rule or custom of the employes of the railroad to give a signal for the moving of the train.
“The expectation that such signal would be given does not relieve a person, in such situation, from constant watchfulness for his safety.”

The opinion in this case was delivered for the court by Judge McCauley. On page 127 of the opinion, the court say:

“The plaintiff knowing that the train would soon move backward, went upon the track at a station a few yards in the rear of the train, and thence walked from the train, and did not take the care to look around or in any way keep a lookout for its movements until the backing ears struck him, and this, when there was nothing to hinder him from turning around, and nothing to prevent him from plainly seeing the train if he had looked for it.”

As I have said, the foreman testifies that he did call out to Callahan to warn him of the approaching locomotive. Rabie testifies that he was at work upon the track, and after Callahan started to walk on the track he saw the locomotive coming along; that he stepped off the track to let it pass by and that he called out to Callahan to “watch out” or “look out,” but Callahan testified that he did not hear him; and the finding of the jury in answer to one of the interrogatories submitted by the plaintiff below indicates that they found that either Rabie did not call out, or that he did not call out loud enough for Callahan to hear him.

I have discussed this proposition upon the theory that Rabie did not give the warning. And we are of the opinion that this would not excuse plaintiff; that although it had been the custom to call out, and although he heard no warning given by the foreman, he could not, under the law, rely upon that to such an extent as to relieve him of the duty of keeping a lookout himself when he was walking down the track. As has been said, the testimony of Rabie is that he did, in fact, call out to him, but there is a question as to whether he called out loud enough for Callahan to hear him. But the jury found that the bell was ringing as the engine approached Callahan.

Upon the question as to whether a party can recover where his negligence is concurrent with that of the party charged, a decision of the Circuit Court of Appeals of the United States, the opinion rendered by Justice Day, now of the Supreme Court of the United States, is directly in point. It is the case of Gilbert v. Railway Co., 13 O. F. D., 475, 482. It is said in the second paragraph of the syllabus:

“The rule that where the plaintiff, in an action for personal injuries, who places himself in a dangerous position, and from which an injury is likely to result, may recover therefor if the defendant, with full knowledge or such notice as is equivalent to knowledge thereof, fails to exercise reasonable care, by which the injury may have been avoided, has no application to a ease where the injury is the result of the concurrent negligence of both parties.”

We think it is clear in the ease at bar, if the railroad company was negligent, through the engineer and fireman, that this injury happened as the result of the concurrent negligence of both parties; that Callahan was himself guilty of negligence contributing directly to his injury, up to and at the very time that the injury occurred. He made no effort to ascertain whether this locomotive was approaching; he kept no lookout whatever while walking upon the track, or when he bent over to pick up the tools; and that therefore he was negligent during all of the time after he started to walk down the track until he was in fact injured.

After reviewing the authorities at length and citing some federal decisions, some of them decisions of the Supreme Court of the United States, Judge Day concludes:

“As we understand the rule to be deducted from these authorities, it amounts to this: That where the plaintiff, by his own negligence, has placed himself in a dangerous position, where injury is likely to result, the defendant, with knowledge, or such notice as is equivalent thereto, of the plaintiff’s danger, is bound to use reasonable care and diligence to avoid injuring the plaintiff; and where, by the exercise of such care he could do so, fails to avoid the injury, this negligence introduces a new element into the case, and renders the defendant liable, because such negligence becomes the direct and proximate cause of the injury. We do not think the principle settled in these eases applies to a case where it clearly appears that the injury is the result of the concurrent negligence of the plaintiff and defendant. There is no averment in the petition that the engineer or fireman saw the decedent upon the track, or in a place of imminent danger, in time to have avoided the injury. Taking the allegations of the petition together, it seems to us to be a case of concurrent negligence on the part of the decedent and the railway company. Assuming it to be true that the defendant was guilty of the negligence charged in the petition, the deceased was guilty of negligence which directly contributed to the injury. In this view of the case, we do not think it is brought within the principle laid down in Baltimore & O. Ry. Co. v. Hellenthal, 88 Fed. Rep., 116, and similar cases. As the petition fails to disclose a cause of action in favor of the plaintiff, the 'demurrer was properly sustained, and the judgment of the court below is affirmed.”

This was a crossing case where a man was injured while crossing the railroad track. In a very recent case in the Circuit Court.of Cuyahoga County, in the opinion delivered by ¡Judge Caldwell, he cites and reviews many authorities and decisions of our Supreme Court. This is the case of Cleveland, C., C. & St. L. Ry. Co. v. Gahan, 1 Circuit Court—New Series, 205. The second paragraph of the syllabus is as follows:

‘ ‘ The rule that in ease of injury by negligence, where the parties are mutually in fault, the plaintiff may recover if the negligence of the defendant is the proximate cause of the injury while his own negligence is only the remote cause, consisting of some act or omission not occurring at the time of the injury, does not apply where the negligence of each party was the same in character, time and duration and equally active in causing the injury.”

On page 286 of the opinion, after reviewing the authorities, Judge Caldwell says:

“The rule, as established by the courts, and in cases heretofore referred to, is in cases where the plaintiff has, at some time prior to the negligent act of the defendant, been guilty of negligence, and the rule is on the ground that the two acts of negligence did not co-operate; that the plaintiff’s negligence created only a condition or circumstance upon which the defendant’s negligence thereafter acted; and where that is true the defendant’s negligence is the proximate cause, or, as expressed by some courts, the ‘last chance.’ In citing the foregoing authorities upon this proposition, it has not been the purpose to establish when the rule applies, beyond this fact, that it applies only when the plaintiff’s negligence in this case was not prior to, but co-operated with, that of the defendant.
“This rule does not apply where the plaintiff may have been negligent in not looking for danger from an approaching train upon the track, when it would have been possible for him to have stepped from the track, had he thus looked. Nor will it apply where he stands so close to the track without looking for approaching danger, that he is struck by a rapidly moving train. For, in these cases, his negligence, which co-operates at the same time with the defendant’s negligence, is his standing on the track without any effort to see approaching danger or without effort to move from his position, which is a continuing negligence, until he is struck. In such cases he can not complain. ’ ’

In the case of Lake Shore & M. S. Ry. Co. v. Schade, 15 C. C., 424, which has been so often referred to and sometimes criticised, and which was affirmed by the Supreme Court without report, this principle of law laid down by Judge Caldwell in Cleveland, C., C. & St. L. Ry. Co. v. Gahan, supra, and laid down by the Supreme Court in the case of Railway Co. v. Kassen, 49 Ohio St., 230, was applied to the facts in that case, and the charge of the court to the jury was apparently based upon the theory that the negligence of the party injured might not have been concurrent with that of the other party. An abstract of the charge to the jury is found in the opinion, on pages 320, 321, as follows:

“ ‘One of the charges of negligence in this case is that while George Kirkhope, the deceased, was upon the track in a place of danger from the approaching engine, the engineer or persons in charge of this train could have seen him, and at least have checked the speed of the engine so as to permit him to pass on in safety. We say to you, if by the exercise of ordinary care on the part of the engineer he could have seen the decedent, George Kirkhope, upon the track, and the dangerous position he was in, and by the exercise of ordinary care could have stopped his engine in time, or checked its speed so as to have permitted him to escape from this dangerous place, and saved his life, it was his duty to exercise that care.’ * * *
“ ‘Failure to do it would be negligence, which would permit recovery in this case, although George Kirkhope may have been guilty of negligence in going upon the track and being in that position. That is, upon ■ the rule that where a person sees another in a position of danger, no matter how such person came there, if by the exercise of ordinary care he could save such person from injury, it is his duty to do so, and the failure to exercise such care is negligence.’ ”

The question in this case was whether this proposition of law was applicable to the facts in the case. Judge Hale dissented. He says, in his'dissenting opinion, on page' 324:

‘ ‘ The charge as given I have no sort of disposition or desire in any shape to criticise. Every dictate of humanity, every reason that could be suggested, would sustain the decision rendered in the case here cited in Railway Co. v. Kassen, 49 Ohio St., 230. It was clearly right. The only doubt that remains in my -mind is whether the principles there announced should be applied to a ease of this land.”

We hold in the ease at bar that the principles announced in the case of Railway Co. v. Kassen, 49 Ohio St., 230, are not applicable to the facts in this case; that here is a case of concurrent negligence, the negligence of Callahan being concurrent with that of the railway company, if the railway company was in fact guilty of negligence.

We Ho not think any case has been cited by counsel for defendant in error that conflicts with the views here expressed. The ease of Snyder v. Railway Co., 60 Ohio St., 487, is where a man was working upon the track, engaged at his work of unloading a car, a train came along without giving any signal and he was injured. In the ease of Lake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St., 135, a man was engaged in work upon the track, bending over; a train came along, and without any signal, ran into him, and he was killed, and the Supreme Court held it was a fair question for the jury as to whether there should have been a rule requiring the railway company to have a man there to give warning of approaching trains.

In an unreported case decided by the Supreme Court on June 9, 1903 (Lake Shore & M. S. Ry. Co. v. Ham, 48 Bull., 545), men were at work upon the track at or near Pettisville, Fulton county, about four miles from Wauseon. The decedent went down the track to get some tools of some kind; he was walking on the track; a train was about a half a mile away when he started; when about 247 feet from the point he started he was struck by the train and killed. It was claimed that he was not guilty of contributory negligence because he had a right to rely upon a warning being given to him; that the foreman did not give him any warning; that he did not see the train when he started to walk upon the track. The Supreme Court held that the court of common pleas was justified in directing the jury to return a verdict in favor of the defendant and affirmed the judgment of that court and reversed this court.

It is unnecessary to discuss the answers of the jury to the interrogatories propounded on behalf of the plaintiff below. We hold that notwithstanding the fact that the jury found that the engineer and fireman could have discovered plaintiff by the exercise of ordinary care, he can not recover on account of his own contributory negligence. We hold that the answer of the jury that Callahan exercised ordinary care in walking down this track is not sustained by the evidence, and that as a matter of law he was guilty of contributory negligence in not keeping a lookout for the locomotive, as has been already stated.

We therefore hold, under these special findings of the jury, which in fact found Callahan, under the law, as we understand it, guilty of negligence which contributed directly to his own injury, negligence concurrent with that of the railway company, if it was guilty of negligence, that plaintiff can not recover. ' And the court of common pleas therefore erred in overruling the motion of the railway company for a judgment upon the special findings of the jury.

The judgment of the court of common pleas must be reversed and judgment entered here in favor of the railway company.

I will say further that we are of the opinion that the finding of the jury that the engineer could have discovered Callahan, by the exercise of ordinary care, is not sustained by the evidence. The evidence does not establish the fact that the engineer or fireman were negligent. There is no evidence that either one of them saw Callahan. The evidence is that the engineer could have seen Callahan when he was within 135 or 140 feet of the engine. Men were at work upon these tracks all the time, repairing the track; they remained on the track until the train was just a little way off — very near to them; and the fact that the section men were upon the track and that Callahan was ahead of the locomotive was no notice to the engineer that he would remain upon the track until the locomotive struck him. The testimony of Rabie shows that he remained upon this track, although he saw this locomotive coming, he remained at work upon the track until it was very close to him, when he stepped off and let it pass by .

In view of these facts, in view of the situation and the known custom for the men to remain upon the tracks were they were at work until the locomotive was very close to them, and the fact that there is no evidence that either the fireman or engineer saw Callahan walking down the track, we are of the opinion that this finding of the jury, in answer to interrogatory No. 4 submitted by the plaintiff below, is not sustained by the evidence; that is, the affirmative answer to this question, “Could the engineer of the engine, by exercising reasonable and ordinary care, have stopped the engine in time to avoid injuring Callahan, after he knew, or should have known of Callahan’s danger, by the exercise of ordinary care?” The testimony is that both the engineer and fireman were looking out of the cab window and neither saw him.

But aside from the question of negligence on the part of the railway company; we hold, for the reasons stated, that judgment should be entered upon the special findings of the jury in favor of the railway company in this court, and the judgment of the court of common pleas reversed.


text:
    LEDGER. ENTRIES COMPETENT EVIDENCE.
    [Circuit Court of Lorain County.]
    Mary W. Burr v. R. H. Shute.
    Decided, October, 12, 1902.

      JBook Accounts — Those of Original Entry Destroyed — Correctly Posted Ledger Then Competent — Motion for a New Trial — Evenly Balanced Testimony.

    1. Where a day book or memorandum book of original entries has been destroyed, and there is proof that the entries were correctly transferred to the ledger, such ledger is competent evidence as to an account contained therein.

      2. In a ease where the evidence is so evenly balanced that a reviewing court would hesitate to disturb a verdict were it returned for either party, it is not error to overrule a motion for a new trial, asked on the ground that the verdict was against the weight of the evidence.
    Hale, J.; Caldwell, J., and Marvin, 'J., concur.
   The case of Burr v. Shute, error to the court of common pleas. The defendant in error, Shute, obtained a judgment against the plaintiff in error in the court of common pleas for a small amount, for goods sold and delivered to the plaintiff by the defendant.

The ease was first tried before the justice of the peace, and an attempted appeal to the common pleas court by the defendant in error, the judgment of the justice of the peace being in favor of the plaintiff in error.

The first error assigned is that there was really no judgment in the justice court, and, therefore, nothing to sustain an appeal. We intimated to counsel on the hearing that we thought that judgment was good, and we have no doubt that the judgment, although irregular, was sufficient to determine the rights of the parties.

And second, that the court erred in admitting a certain book in evidence.

Shute owns a meat market, and the cause of action stated in the petition was on an account for meat sold by the defendant in error to plaintiff in error.

1. A. Webster, for plaintiff in error.

F. Budin, for defendant in error.

The book offered was a ledger. Some of the meat was sold from a meat wagon that was driven about the country by an agent of Shute, who made memorandums of the sales in a little book which he returned to the shop. Some of the meat was sold from the shop, if we believe the defendant in error's statement, and that was charged in a day book. Both of those books of original entry were posted by the book-keeper, Boynton, into the ledger. It is shown in evidence that these two boobs of original entries are destroyed.

The proof is, that the transcript from these books to the ledger was correctly made, both as to the property sold and the amount and the price.

We see no reason why the book was not competent. If the books of original entry were destroyed, and there was a correct copy of them, such copy was proper evidence.

And secondly it is said the verdict of the jury was not sustained by sufficient evidence.

There was evidence tending to show that there was dealing between the' plaintiff and defendant, and tending to establish the claim of the defendant in error. It was sharply met by testimony and evidence on the part of the plaintiff in error; but the evidence is not such as would authorize a reviewing court to reverse the judgment of the lower court on the weight of the evidence.

ITad the verdict been for either party we would not disturb it. That is saying that the court did not err in refusing the motion for a new trial because the verdict was not supported by sufficient evidence, and the judgment will be affirmed.