author: HENRY, J.

text:
    INJUNCTION — CONTRACTS—STATUTES.
    [Summit (8th) Circuit Court,
    April Term, 1905.]
    Marvin, Winch and Henry, JJ.
    George W. Carmichael & Co. v. Patrick McCourt et al.
    1. Board of Public Works — Lowest Bidder, as such, may not Enjoin Letting of Contracts.

      A suit in injunction to restrain the board of public works from entering into contracts claimed to have been let to other than the lowest responsible bidder may not be maintained by an unsuccessful bidder, claiming to have been the lowest, except he sue in the capacity of a taxpayer.
    2. Laws Relating to the Board of Public Works Distinguished from Public Buildings Code.
    The sections of the revised statutes relating to the letting of contracts, etc., by the board of public works are distinct from and independent of those sections which relate to the letting of contracts, etc., under the caption of “Public Buildings.” Thus, a greater latitude of discretion is allowed the board of public works in passing on bids for contract work than to officers with similar powers under the public buildings code.
    Appeal from Summit common pleas court.
    Rogers, Rowley, BÍ rad ley & Rockwell, for plaintiff.
    D. A. Doyle and Geo. H. Jones, for defendant:
    Lowest bidder. Boseker v. Wabash Go. (Comrs.) 88 Ind. 267; Hoole v. Einkead, 16 Nev. 217; Commonwealth v. Mitchell, 82 Pa. St. 343; State v. McGrath, 91 Mo. 386 [3 S. W. Rep. 846]; Dunklin Co. v. Dunklin Co. Dist. Ct. 23 Mo. 449; State v. Garesche, 65 Mo. 480; Hancock v. Ewing, 55 Mo. 101; Marquez v. Frisbie, 101 TJ. S. 475 [25 L. Ed. 800] ; Bice v. Austin, 19 Minn. 103 [18 Am. Rep. 330]; Findley v. Pittsburgh, 82 Pa. St. 351; Heffner v. Commonwealth, 28 Pa. St. 108; High, Injunctions Sec. 797; Gaines v. Thompson, 72 U. S. (7 Wall.) 347 [19 L. Ed. 62]; Warfel v. Cochran, 34 Pa. St. 381; 3 Wait, Act. Def. 749; High, Extra. Leg. Rem. Sec. 92; State v. Pond Du Lac {Bd. of Ed.), 24 Wis. 683-, People v. Canal Board, 13 Barb. 432; People v. Albany {Supvrs.), 12 Johns. 414; Kelly v. Chicago, 62 111. 279; 15 Am. & Eng. Enc. Law (1 ed.) 1090 et seq; Boss v. Board of Ed. 42 Ohio St. 374; Mooers v. Smedley, 6 Johns. Ch. 28; Beeside v. Walker, 52 U. S. (11 How.) 275 [13 L. Ed. 693]; High, Injunctions See. 979; Brooklyn {Mayor) v. Meserole, 26 Wend. 132; Hyatt v. Bates, 40 N. Y. 164; People v. Contracting Board, 27 N. Y. 378; People v. Croton Aqueduct Board, 49 Barb. 259; Free Press Assn. v. Nichols, 45 Yt. 7; People v. Contracting Board, 33 N. Y. 382; Am. & Eng. Enc. Law (2 Ed.) 839; People v. Kent, 160 111. 655 [45 N. E. Rep. 760]; State v. Bickards, 16 Mont. 145 [40 Pac. Rep. 210; 28 L. R. A. 298; 50 Am. St. Rep. 476; Peoplev.Dorsheimer, 55 How. Pr. 118 ¡Interstate Vitrified Brick & Pav. Co.v.Philadelphia, 164 Pa. St. 477 [30 Atl. Rep. 383] -,Beutingv.Titusville, 175 Pa. St. 512 [34 Atl. Rep. 916]; Kelly v. Chicago, 62 111. 279; Wiggins v. Philadelphia, 2 Brews. (Pa.) 444; Weed v. Beach, 56 How. Pr. 470; People v. Dental Examiners, 110 111. 180; Mayo v. County Comrs. 141 Mass. 74 [6 N. E. Rep. 757]; Mills Pub. Co. v. Larrabee, 78 Iowa 97 [42 N. W. Rep. 593]; East Biver Gas-Light Co. v. Donnelly, 93 N. Y. 557; State v. Scott, 17 Neb. 686; Times Pub. Co. v. Everett, 9 Wash. 518 [37 Pac. Rep. 695; 43 Am. St'. Rep. 865]; State v. Directors, 5 Ohio St. 234; Goss v. Capitol Commission, 11 Wash. 474 [39 Pac. Rep. 972]; State v. Shelby Co. {Comrs.) 36 Ohio St. 326; American Pavement Co. v. Wagner, 139 Pa. St. 623 [21 Atl. Rep. 160]; People v. Croton Aqueduct Board, 36 Barb. 240; State v. Abbot, 25 O. C. C. 538; Akron v. France, 24 O. C. C. 63.
   HENRY, J.

These two actions [George W. Carmichael & Co. v. Patrick McCourt and George W. Carmichael & Co. v. Daniel McCarry et al.] came into this court on appeal, and were tried together. In each of them the" plaintiffs, who are contractors, seek to enjoin the board of public works and certain rival contractors from entering into contracts for the supplying of materials and the performance of work for which the contractors last mentioned have been declared to be the successful bidders.

It is claimed that plaintiff was really the lowest bidder for the contracts in question and that the board arbitrarily and fraudulently changed the estimates in one case after the advertisement and bidding were completed, but before the award was made; and in the other case unlawfully combined certain bids for different portions of the subject-matter of the bidding so as to render plaintiff’s lowest bid apparently, though not really, higher than those of his successful competitors.

Plaintiff bases his right to sue upon his supposed right as the lowest bidder under the advertisement and the law, and not upon his right as a taxpayer or citizen of the state of Ohio to protect himself and others in like case from unlawful expenditure of public funds. There is no allegation in the petition in either case that the plaintiffs are citizens or taxpayers or residents or voters in Ohio-. The plaintiff’s right of action moreover is based avowedly upon Chap. 1, Title 4, Rev. Stat., entitled public buildings; Secs. [Lan. R. L. 1744 to 1753] 785 to 794 whereof provide, that no contract for public improvements shall be let, by municipal or other public officers therein mentioned, otherwise than upon advertisement and to the lowest bidder, except under circumstances and conditions not material here.

Defendants contend, however, first, that plaintiff, in the capacity of lowest bidder merely, cannot maintain an action of this character, or of any character, on the facts of this case, because the advertisement expressly reserved the right in the board of public works to reject any and all bids, and, therefore, a rejected bidder, even though he be the lowest, has no right of action in the premises which the law will recognize or enforce.

The defendants further contend that the chapter on public buildings in the revised statutes, however appropriate the phraseology of particular sections thereof may seem to be to the facts of this case, can have no application to the canals or to the board of public works of the state of Ohio, both of which subjects have been for nearly a hundred years governed solely by a code of laws expressly applicable to them, and hence exclusive of the operation of the public buildings code, so-called. The only law, therefore, which is applicable, in their view, to this case is Lan. R. L. 1333 (B. 218-44), which provides that contracts shall be awarded to the lowest responsible bidders, and which thus vests in the board a discretion finally and conclusively to determine who are the lowest responsible bidders with respect to the peculiar kind of improvements that the board of public works is empowered under the constitution and the laws of Ohio to administer.

Upon the former question we were at first inclined to resolve in favor of the plaintiff the doubts expressed by the presiding judge on the hearing, and to follow the authority of Lake Shore Foundry v. Cleveland, 4 Circ. Dec. 230 (8 R. 671), a case which was decided by this court when it was differently constituted, and which apparently holds that a lowest bidder might, as such, enjoin a public officer from letting a contract to other than the lowest bidder wherever the law expressly forbids letting it to any other.

The syllabus in that case is, in part, as follows: “When a city-advertises for bids for water pipe, and accepts a bid claimed to be invalid as not in conformity to the advertisement, the next lowest bidder may bring suit in injunction, without request under Sec. [Lan. R. L. 3281] 1778 Rev. Stat., to the city solicitor to bring it.”

But a careful examination of that case discloses the fact that the Supreme Court decisions there cited, in support of the holding therein made, do not so decide. On the contrary, we find it is undoubtedly the law that although injunction may indeed be the proper remedy in such cases, it cannot be maintained by the lowest bidder, except he sue in the capacity of a taxpayer. See Colorado Paving Co. v. Murphy, 78 Fed. Rep. 28 [49 U. S. App. 17; 23 C. C. A. 631; 37 L. R. A. 630]. The syllabus of that case is instructive:

“One who seeks relief from the courts for a breach of a duty imposed upon public officers by 'statute must show that he has a vested right to the discharge of that duty, and that the statute which imposed it was enacted for the benefit of himself and others in a like situation.
“If the duty was imposed for the benefit of another person or class of persons, and the complainant’s advantage from its disehargé is merely incidental, and not a part of the design of the statute, no such ■right is created as forms the subject of an action at law or of a suit in equity.
‘ ‘ The ^ usual provision in city Charters that contracts for public work shall be awarded to the lowest reliable and responsible bidders was not enacted to furnish employment for contractors, or to benefit a bidder for such work, but with the design to benefit and protect the property holders and taxpayers of the municipalities.
“Taxpayers and property holders whose rights of property will be injuriously affected by the fraudulent or arbitrary violation of this and similar provisions of city charters may maintain a suit to enjoin such action by public officers whose duty it is to comply with them.
“But the lowest reliable and responsible bidder for a contract for public work has np such vested or absolute right to a compliance with such provisions of the statutes as will entitle him to maintain an injunction against their violation by public officials, because these provisions of the statutes were not enacted for his benefit, or for the benefit of his class.
“The presentation by a reliable and responsible bidder of the lowest bid for a contract for public work to officials whose duty it is, under the charter of a city, to let the contract to the lowest reliable and responsible bidder, but who have the right, under the statute, to reject all bids, and who have given notice in their advertisement for bids that they reserve the right to reject any and all bids, does not constitute an agreement that they will make a contract for the work with such a bidder; nor does it vest in him such an absolute right to the contract as will authorize a court of equity, at his suit, to compel the officials, or the municipality they represent, to enter into a contract for the work with him, when they are about to award, or have awarded, it to a higher bidder.”

In the quotation just read we have in part anticipated the remaining question which is presented in this case. On consideration of that question we find that the plaintiff is further prevented from maintaining this action upon the principles announced not only in the case just read but also by this court in McClain v. McKisson, 8 Circ. Dec. 357 (15 R. 517) ; and we refer particularly to pages 363 and 364. That case was affirmed without report in McClain v. McKisson, 54 Ohio St. 673. The character of the action there is sufficiently indicated by the first paragraph of the syllabus, which I read for that purpose:

“A taxpayer, though a non-resident of a city, has a right, after failure of the director of law, at the request of said taxpayer, to prosecute an action in mandamus, to bring such action himself, to restrain the city from entering into an unlawful contract for waterworks, if he is sincere in the claim that his principal object is to restrain the city from entering into an unlawful contract, even though his success will prove beneficial to one of the bidders, and although such bidder has agreed to indemnify the plaintiff for expenses incurred.”

Reading now from the opinion of the court on page 363:

“Can the contract be awarded to one who is not the lowest bidder?
“This question involves an examination of the statutes, to determine under which provision this contract was let. Section 76 of the federal plan law, points out how the city is to proceed in case of an improvement or repair or purchase of supplies, where the cost exceeds $500; and paragraph 5 of that section provides:
“ ‘If the work bid for embraces both labor and material, they shall be separately stated, with the price thereof.’
“Paragraph 6 reads:
“ ‘None but the lowest and best responsible bid shall be accepted when such bids are for labor and material separately, but the council may, at its discretion, reject all the bids, or accept any bid which may be the lowest aggregate cost, when recommended by the board of control.’
“This provision of paragraph 6 seemed to refer entirely to cases where labor and material may be bid for separately; that separate bids may be tendered and accepted when they are the lowest and best responsible bids; but if the fractional bids are not lower than any one bid which includes all the fractional parts, or is the aggregate of all of them, then the aggregate bid may be accepted.
“Section [Lan. 1753] 794,” one of the sections of the chapter on public buildings, “applies to cities and towns and villages among other corporations and boards, but this section makes it imperative that the officer, board or authority calling for the bid, shall require separate and distinct proposals to be made for furnishing the materials for doing the work, or both, in their or his discretion, for each separate and distinct trade or kind of mechanical labor or employment, or business necessary to be used in making such public improvement. In this respect the statute is similar to the one in the federal plan law. It would seem from the notice inviting the bids, that the city was not proceeding, as to the character of the bids, under either of these provisions of law. The notice fully provides for a pumping engine, and that all steam pipes, fixtures, water pipes, mains, valves and labor are to be furnished with the pump. The bid called for is a unit, and gives no opportunity to anyone to bid separately on material or labor or anything else called for in the notice. The federal plan law places the waterworks of the city under the management of the director of public works of the city, who takes the place of the trustees or board under the provisions as provided for in the general law of the state pertaining to waterworks; and any authority in the law vested in the trustees or board, is now vested in such director.”

The opinion proceeds to quote Lan. R. L. 3691 and 3695 (R. S. 2415 and 2419; B. 1536-526 and 1536-530), and then continues:

“The notice seems in all its parts and purposes to have been made under this section of the law. It is not made to harmonize with the purpose and intent of the provisions of the federal plan law, nor of the general provisions of the law as found in Sec. [Lan. 1753] 794; nor do the bids in any manner purport to be made under those sections; and it is evident that those sections were not intended to. apply to a matter of this kind. And Sec. [Lan. 3695] 2419 is one under which the city authorities had a right to call for bids. They have called for bids under this section. The bids have been made to conform to these provisions, and it is under this section that the authority of the city to award the contract is to be determined. This section gives to the city an option to award the contract to the lowest bidder, if in their opinion he can be depended upon to do the work with ability, promptness and fidelity; and if such be not the ease, then they may award it to the next lowest bidder, or decline to contract. This section places this option entirely upon the opinion of the city authority, and the court certainly cannot interfere with that opinion.”

Upon the reasoning of this court in that case it is plain that the laws relating to canals and to the board of public works are distinct from and independent of those provisions of law which in the revised statutes are grouped under the caption of public buildings. And we so hold.

That decision also illustrates the distinction whereby the law relating to the letting of contracts concerning the canals must be held to afford a latitude of discretion as to awards which is greater than the public buildings code, if it applied, would allow.

It is claimed in this case, however, that the board of public works acted fraudulently in altering its estimates just before the awards were made, but the testimony of the witnesses Paul and' Perkins shows that however desirous they or the board may have been to favor the successful bidders, there was enough excuse for the changes made, to negative the imputation of fraud.

The petition, we hold, must be dismissed, for the reasons stated.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    ASSESSMENTS — ESTOPPEL—DEEDS.
    [Franklin (2nd) Circuit Court,
    March 25, 1905.]
    Dustin, Wilson and Sullivan, JJ.
    John L. Waldschmidt v. Willis G. Bowland.
    1. Gbantee Assuming Assessments Estopped from Claiming that Property not Benefited by Improvement, etc.
    A grantee of real property who assumes and agrees to pay a certain street assessment against the property as part consideration for his purchase, is estopped from thereafter contesting the validity of the assessment on the ground that the property is not specially benefited thereby.
    2. Grantee Assuming Certain Assessment Presumed to Know Amount of Same^ ' ETC.
    A grantee vof real property is presumed to know that a certain assessment is a lien against the property, and also the amount thereof, by accepting a deed containing a covenant that the premises are clear and free of all incumbrances except the taxes “and all assessments for the improvement of Third street (the street on which the premises abut) under the , Taylor law, which grantee assumes and agrees to pay as part of the purchase money herein,” notwithstanding the ordinance assessing tha property was not passed until after the purchase; but a general assumption of assessments, without specifying any particular one, will not estop a grantee who purchased before the assessing ordinance was passed.
    Appeal for Franklin common pleas court.
    O. H. Mosier, for plaintiff:
    Estoppel. Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120].
    J. M. Butler, for defendant.
   SULLIVAN, J.

That a street improvement of the character made upon this street, there is certainly no question, but what the abutting property is specially benefited thereby.

■The exact extent of such special benefits is frequently difficult of definite proof.

The present case is no exception to this rule. It is, as in this case, so often a matter of opinion, as to make it most difficult at least for the courts, to determine to an absolute certainty, the benefits conferred. In this case, with but two exceptions, all the witnesses called by plaintiffs have testified, that the abutting property was worth no more after than before the improvement. The majority of those so testifying are owners and occupiers of abutting property, and liable for the assessments. The testimony of nearly all the witnesses called is to the effect, that the property along this street, is owned and occupied, by persons who purchased the property for permanent homes, and not for speculation, or sale, and hence the opinions expressed as to the market value before and after the improvement, had for their basis only two or three sales of property on this street.

We think it may be safely assumed, that one who purchases for, and occupies property as, a permanent home, gives to the market value of his property as it may be affected by various causes from time to time, no consideration. It is not for sale and was not purchased for sale and hence what its market price may be gives him little or no concern. This cannot be said to be the case, with those who purchase to sell, or would sell, if they could realize a profit. Neither can it be said of those persons who make it a business to negotiate both sales and purchases, and who necessarily must be informed, as to the various causes affecting the market value óf real estate. The opinions of such persons however, are to be viewed in the light of actual sales, when a sufficient number have been made to indicate with a degree of certainty at least the market value.

In this ease we have the witnesses for plaintiffs, with the exception above stated, testifying that the abutting property received no special benefit from the improvement, whilst those called by the defendant who with one or two exceptions were experts — men engaged in negotiating sales — testified that the special benefits were from $8 to $10,to $15 per front foot. The amount below, upon this same testimony, reduced the assessment $1.50 per front foot. The trial judge being 'familiar with the street and abutting property took the pains of making a personal view of both.

Louis Sidensticker called by plaintiffs who owns and occupies property on this street, and assessed for the improvement, states that in his judgment the special benefits to the property was about $6.50 per front foot. The judgment of this witness impressed this court very favorably. If he was prejudiced at all, it is safe to assume it would be in favor of the plaintiffs. His testimony impresses the court that he was without prejudice. He purchased a lot of some thirty-one feet front before the improvement, paying $1,200, which in his judgment was $200 more than its market value at the time, and that after the improvement, its market value was increased at least $200 — making the special benefits per front foot about $6.50. He explains why he paid more than the market value when he purchased. The testimony of the expert witnesses in view of all the testimony as to the few sales made, we think place the benefits too high, and whilst absolute certainty is not possible, we are of the opinion that the assessment as reduced .by the court below is correct, and therefore on the question of benefits, the decree of this court will be the same.

The language appearing in the deed of Barbara Meinert to Peter G. Meinert, creates an estoppel against the grantee. The assumption by him to pay the assessment in controversy, constituted a part of the consideration for the premises, or to put it more concisely, the assessment together with 'the amounts of money expressed in the deed, constituted the whole consideration. There is no ambiguity on this provision of the deed, and no presumption arises, that the parties intended that the language used should be construed to mean any other than the ordinary signification of the words. We are of the opinion, that this provision in the deeds comes clearly within Caldwell v. Columbus, 1 O. S. C. D. 612 (37 Bull. 270). The assessments are named in this provision of the deed, being those for the improvement of Third street in front of said premises. Benjamin Smith by consent of defendant and leave of this court was made a party plaintiff after the appeal. He is the owner of lot 141 Jaeger addition to the city abutting upon Third street and is assessed. He purchased from Nicholas S. Ohler taking a deed therefor July, 1892, in which the following provision appears in the covenants of the deed: “Free and clear from all incumbrances whatsoever except the taxes for 1892 and all assessments for the improvement of Third street under the Taylor law which grantee assumes and agrees to pay as part of the purchase money herein.”

Plaintiff Smith contends that this provision in the deed does not constitute an estoppel and that he has a legal right to challenge the assessment. The reason assigned for this contention is, that at the date. of the deed the assessment ordinance had not been passed. We think this contention is not good as the resolution declaring the necessity for the improvement was passed by the city council July 19, 1891, and the ordinance ordering the improvement was passed August 24, 1891. The provision in the deed in view of the passage of the foregoing resolution and ordinance on the dates above stated, and that council passed the ordinance assessing the property September 26, 1892, a few days after the purchase by Smith, support the conclusion that the parties knew that the assessment was a lien upon the property, and also the amounts of same at the date of the deed and the assumption by Smith to pay the same as a part consideration for the property, was with knowledge of the amount of the assessment.

Daniel Hellwig purchased from Henry Stehle, January 11, 1892, after the resolution to improve and ordinance ordering the improvement and before the assessing ordinance was passed. The provision in his deed does not specify any particular assessment for the improvement of any partienlar street, hence it cannot be said that the assumption expressed in his deed related to and covered the assessment alone upon Third street for which reason we think he is not estopped. ■

The decree of this court will therefore be the same as that of the court below on the question of estoppel excepting therefrom Daniel Hellwig — and also that Smith is estopped from challenging the assessment. There will be abated from the assessment upon the Hellwig property, the sum of $1.50 per front foot, and that be pay whatever may remain of the assessment after such abatement and the costs may be taxed as in the decree of the court below.

Dustin and Wilson, JJ., concur.


author:
      HAYNES, J.
      Parker, J. Haynes, J.

text:
    RAILROADS — NEGLIGENCE—FENCES—MASTER AND SERVANT.
    [Lucas (6th) Circuit Court,
    February 11, 1905.]
    Hull, Haynes and Parker, JJ.
    Mary E. Isley v. Wabash Ry.
    1. Railroad must Keep Fences in Repair, and is Liable foe Injuries Resulting from Failure.
    A railroad company is bound to keep its fences in repair, so as to keep animals off of its right of way; and where one of the company’s engineers is injured by the derailing of his engine, caused from a collision with cattle that had got upon the track through a defective fence, the company is liable therefor, in the absence of contributory negligence on the part of the engineer,
    2. Engineer Acting as Prudent Man not Chargeable with Negligence.
    A railroad engineer is not chargeable with contributory negligence, where the evidence shows that he sounded the proper whistle signals immediately after discovering cattle upon the track, and exercised ordinary care and prudence in the management of his train from the time he saw the cattle until the happening of the injury complained of.
    3. Doctrine of Assumption of Risk not Applicable where Servant cannot Exercise Option of Remaining in Employ, etc.
    The doctrine of assumption of risk is based upon the opportunity the servant has to exercise his option or election to remain in the employment and proceed with the work of the master, and does not apply where the servant is met or confronted by an emergency which does not afford him an opportunity to exercise such election.
    Error to Lucas common pleas court.
    Harvey Scribner, for plaintiff in error.
    A. L. Smith, for defendant in error.
   HAYNES, J.

This suit was brought by Mrs. Isley, as administratrix, to recover damages for the death of her husband, caused, as was alleged, by the negligence of the railroad company. The husband, Mr. Isley, was an engineer on the road and the train, on a certain day, was derailed and he was killed. The cause came to trial before the court and jury, and upon the conclusion of the plaintiff’s evidence, the court took the case from the jury and directed a verdict for the defendant, upon the ground, it is alleged, that the decedent himself was guilty of negligence. At any rate, he took the case from the jury, and the case has been brought here upon a transcript of the evidence and we are called upon to review the action of the court. >

It appears that in October of a certain year that the decedent, in charge of a locomotive of a freight train, was proceeding along the track near a place called Ashwood, in Defiance county, going northward towards Toledo; and discovered some cattle upon the track, and immediately gave the alarm for brakes, etc., but the locomotive struck one of the animals and was derailed, and the engineer was killed. The fireman, who was not called as a witness, was not killed.

Now to come to particulars a little more in regard to the matter: The claim is, that the railroad was not properly fenced, or that the fences had become out of repair, and that the railroad company was not keeping the fences in that condition that was required by the statutes of the state of Ohio; and that in consequence of that the cattle of a certain farmer had broken through the fence and had gone upon the railroad track, and one of them at least- was run over by the locomotive. It is proper to say here that the son of the owner of the animals-says that they were put in a wood field near his father’s house on the morning of this same day, at about 6 or 7 o ’clock; that at noon he went out to look for the cattle and found that they had escaped, and, following their tracks, he found they had escaped through this place in the fence and had gone into a ditch that was there, as I understand, on or near the railroad tracks, and had passed down to a wagon road — the distance is not given, but not far away; — they had turned into that road and had gone a distance, according to the evidence, — it is a little blind, — past the point where it seems they were usually let out of the wood lot and kept on down the road; they finally passed from the road upon the railroad track, there being no intervening fence or obstruction, and some were on the track at the time the injury occurred. A portion of them, after the injury, returned the way they had come back to the field.

A farmer was called who testified that he saw the locomotive just before it struck the animals. They were running upon the track. He heard the alarm, and heard the locomotive stop. He was quite a little distance away, so far at least, he says, that the animals in front of the locomotive looked like small calves. It would seem from this that the animals were quite a distance, or some distance, at least, from the point where they had escaped from the wood lot and gone on the track.

The testimony of two brakemen was taken and was to the effect that they were both of them in the caboose at the time the first signal was given, and they stated what the usual signals were when cattle were on the track — short whistles is the signal they all state, for the brakemen to get to their places to protect the train. The first one testified that he went out to the front of the car, perhaps on the car. Very soon, a moment or two afterwards, he heard the engineer putting on air brakes on the front of the train and the signal sounded for brakes. The other brakeman was in the caboose; he was up at the lookout; he heard the sound; he opened the window and went out on top of the car; he could see an animal running along at the side of the train, and soon after going out there, or very quickly, the whistles were sounded for brakes. The conductor of the train — he does not testify — was in the car; he started for some brake. Now this last brakeman says he thinks that at the time the whistle sounded that probably the train was half a mile from where the injury occurred, and that consequently the train must have run about a half a mile before it ran over the animal— he speaks of it as taking a glance.

Now nobody testifies as to the condition of affairs at the time the engineer saw'the cattle, whether they were simply within the lines of the company’s right of way, whether they were near or on the track,, does not appear. Just how they were situated we do not know. All we do know is, that the engineer whistled, sounded the whistle, to-frighten the cattle off; that the brakemen were taking their places at. the brakes, and that the engineer put on the air brakes, the whole thing happened very quickly — it was a train of fifteen cars.

Now with this state of facts it is said that the court found that the decedent was guilty of negligence. However it does not state in the record the grounds upon which he put it; but that he simply directed a verdict. It is argued by counsel for the defendant that the plaintiff ought not to recover because the decedent is chargeable with knowledge of this place in the fence, if it was broken; that he assumed all defects that might.be in the fence near the track; assumed all liability of cattle getting in upon the track. Well, there are some cases on both sides of that question as to whether he was bound to know this. In 4 Thompson, Negligence Sec. 4791 is a statement of the law upon this subject, in which the author says:

“On this subject we find irreconcilable decisions. On the one hand, if the cattle get upon the track through a failure on the part of the railroad company to keep its fences in repair, and if the nonrepair of its fences is a permanent condition, and not the result of transient, unforeseen and consequently unanticipated negligence of the company, then the employe is deemed to assume the risk of injury from that source of danger, and this is so, although the failure to fence the track is a violation of the statute law. Directly opposed to this, we learn from another court that a railroad company is liable to a brakeman for its failure to maintain fences as required by statute, in consequence of which an animal gets upon the track, causing a derailment of the train and injury to the brakeman. On clear grounds, where a railway train man is killed or injured from defects in a track or in a roadbed, existing through the negligence of the company, it will be liable, although the primary cause of the derailment is the running into an animal on the track. ’ ’

We do not think that the engineer was at fault in this matter. The ■company was bound to keep its fences in repair, was bound to keep animals oft of the right of way; and this statute expressly provides that for any injury that results from cattle straying or getting upon the track that the company shall be liable. We do not think there is any negligence chargeable to this engineer in that respect. Simply the case is a case where cattle are found straying upon the right of way, and perhaps upon the track, and are seen by the engineer, and the •question is, whether the engineer exercised ordinary care and prudence in the management of his train from the time he saw the animals until the time that the injury occurred. Now we must say from all this evidence, we do not see any testimony sufficient to charge this engineer with any negligence. It would seem from the testimony that he acted with reasonable care; he'sounded his whistle for the cattle; immediately, almost immediately thereafter, he was putting on his brake, calling for brakes, calling his men to their stations. He seemed to be doing actively and energetically what a prudent man would do under the circumstances.

Now the Supreme Court of this state has made some declarations in regard to the duty of engineers in cases of that kind, in a case that went up from Sandusky county, New York C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130]. I read from page 338:

“While engineers of locomotives are expected from their training, experience, and the nature of their duties, to be equal to almost any emergency in the management of their trains, yet it must be remembered in their favor that they have mind and nerves the same as other people, and that when they are suddenly and unexpectedly confronted with imminent peril or danger to themselves or to the persons and property in their charge, by obstructions on the track or about to go thereon, they cannot be held to a strict course of conduct to prevent injury to persons or property not connected with the train, so that the action taken is in good faith, and at the time believed to be the best. When a person or animal is seen approaching the track, and it becomes evident that he or it will not stop but attempt to cross, it is sometimes safer to slow down or stop the train, and sometimes safer to increase the speed and get the train across first. The course to be pursued must be instantly determined by the 'engineer at the, peril of himself and the persons and property in his charge, and the course selected by him and carried out in good faith in the face of such peril, and in view of the. surrounding circumstances, cannot constitute negligence on his part, even though others might be able to suggest and point out afterwards, that a different course would have been less liable to result in injury. As to the persons and property in his charge, the engineer must use the greatest care, but as to persons and property not connected with the train, he must use only ordinary care. He must therefore be allowed to determine for himself in good faith upon the spur of the moment, and in view of the peril before him, the course to be pursued for the safety of the persons and property in his charge, without being called to a very strict account by those to whom he owes only ordinary care.
“What was said by this court in Express Co. v. Smith, 33 Ohio St. 511, at page 519, is applicable to such eases: ‘ There is an ex post facto wisdom, which, after everything has been done, without success, can suggest something else that should have been attempted; but this is a sagacity much more astute than ordinary human foresight and can hardly furnish a fair rule by which to determine the propriety of what has been done in. good faith, and with judgment exercised under the best light afforded.’ ”

A similar doctrine is found in the case of Louisville & N. Ry. v. Kelly, 63 Fed. Rep. 407 [11 C. C. A. 260; 24 U. S. App. 103]. We are unable to see any grounds for taking this case from the jury: Judge Parker will make a statement upon a point in this ease.

Parker, J.

Counsel for the defendant in error urge upon the hearing that the doctrine of the assumption of risks applied here, even though the engineer had no reason to anticipate the presence of these cattle upon the track. That it applied, after he discovered the cattle upon the track; that when he then decided to ,go forward with his locomotive he assumed the risk of the results that might follow. Now as we understand it, the doctrine of assumption of risks is based upon the opportunity the servant has to exercise his option or election to remain in the employment and proceed with the work of the master; and it does not apply to cases where the servant is met or confronted by an emergency that does not afford him an opportunity to exercise such election. Manifestly under circumstances like those shown in this case, he could not lay down his work, he could not leave his locomotive and say, “I will no longer remain in the employ of this railroad company, because, if I do, I assume the risk that may result from these cattle being upon the track ahead of me.” The doctrine of the assumption of risk is not applicable to such a case at all. If he went forward negligently, it would involve the doctrine of contributory negligence. If the doctrine of assumed risk should apply, then it would follow that the master, the railroad company, would never become liable, no matter how negligent it may have been in allowing cattle to come upon the track. No cause of action ever could accrue to the engineer, because he had assumed that risk. That would be very different from holding that his cause of action was defeated by his subsequent contributory negligence. Upon that subject I think this ease of Louisville & N. Ry. v. Kelly, supra, is in point. Indeed, so far as' we can discover, there is no break in the line of authorities as to the basis of this doctrine. I will read from page 409 of this case, a single paragraph:

“In the order of presentation in the briefs, the first request was to the effect that if the plaintiff knew that the deadwoods of the cars he was attempting to couple were out of repair; that there were holes and pitfalls in the roadbed, and that the fireman in charge of the engine was- incompetent, and remained in the service of the company without making objection, and without receiving any promise that the causes of danger mentioned should be removed, he was not entitled to relief. This was properly refused. If the defendant in error knew that the deadwoods were out of repair, he must, in all probability, have acquired the knowledge on the spot; and, consistently with the terms of the instruetion, his supposed knowledge of the condition of the track and of the incompetency of the fireman, may have come to him so recently as to have afforded him no opportunity to make objection or complaint. Besides, even if he had the supposed knowledge, it was a question for the jury whether or not under the circumstances, he ought to have attempted to make the coupling, and in so doing was himself negligent, or to be considered as having voluntarily assumed the risk of his act. The question was essentially one of contributory negligence, and the instruction should have been so framed as to leave it to the jury.” (Citing cases.)

Haynes, J.

It follows that the judgment will be reversed and the cause remanded for a new trial;

Hull, J., concurs.


author: DUSTIN, J.

text:
    CRIMINAL LAW — JUDGMENTS AND DECREES.
    [Franklin (2nd) Circuit Court,
    1905.]
    Wilson, Sullivan and Dustin, JJ.
    Frank Schaefer v. State of Ohio.
    Power of Police Judge to Revoke Suspension of Sentence not Impaired by Passing of Term.
    In the absence of statutory enactments to the contrary, the power of a police judge to revoke the suspension of the execution of a sentence is not impaired or limited by the passing of the term in which such suspension is made.
    Error to Franklin common pleas court.
    C. D. Saviers, for plaintiff in error:
    Upon the question as to whether or not a judge or court has a right, after the expiration of the term of court at which a sentence was pronounced against a prisoner, to order the same carried into execution. Weber v. State, 58 Ohio St. 616 [51 N. E. Rep. 116; 41 L. R. A. 472]; Brown, Jurisdiction (2 ed.) Sec. 13a; Church, Habeas Corpus See. 378; Williams, Ex parte, 26 Fla. 310 [8 So. Rep. 425]; United States v. Wilson, 46 Fed. Rep. 748; Commonwealth v. Mayloy, 57 Pa. St. 291; State v. Gray, 37 N. J. Law (8 Vroom) 369; Weaver v. People, 33 Mich. 296; State v. Voss, 80 Iowa 467 [45 N. "W. 898; 8 L. R. A. 767]; People v. Cummings, 88 Mich. 249 [50 N. ~W. Rep. 310; 14 L. R. A. 285]; People v. Blackburn, 6 Utah 347 [23 Pac. Rep. 759] ; People v. Morrisette, 20 How. Pr. 118; Webb, In re, 89 Wis. 354 [62 N. W. Rep. 177; 27 L. R. A/356; 46 Am. St. Rep. 846]; Neal v. State, 104 Ga. 509 [30 S. E. Rep. 858; 42 L. R. A. 190; 69 Am. St. Rep. 175]; People v. Allen, 155 111. 61 [39 N. E. Rep. 568; 41 L. R. A. 473]; People v. Barrett, 202 111. 287 [67 N. E. Rep. 23; 95 Am. St. Rep. 230].
   DUSTIN, J.

It having been established in Ohio that a court may, in indefinite terms, suspend the execution of a sentence in a criminal case, State v. Allen, 68 Ohio St. 516 [67 N. E. Rep. 1053], we think it follows that the same judge may revoke the suspension, on his own motion, at any time even after term.

But even if the conditional suspension cannot extend beyond the term, the sentence is not thereby invalidated and can be carried into execution at any time.

The views of Judge Dillon on this question, in the Lee case, seem to us to be sound.

The judgment of the common pleas court is therefore affirmed.

Wilson and Sullivan, JJ., concur.


author: HULL, J.

text:
    TRIAL — CONTRACTS—COMPOUNDING FELONY.
    [Lucas (6th) Circuit Court,
    February 27, 1905.]
    Hull, Haynes and Parker, JJ.
    Henry Richter v. Phoenix Bldg. & Loan Co.
    1. Where Éoth Parties Move for Verdict, Court Occupies Status of Jury.
    Where both the plaintiff and the defendant, at the close of the evidence, respectively move for a verdict in their favor, the court thereupon assumes or occupies the status of a jury.
    2- Contract is not one Compounding a Felony when Party Injured does not Agree to Refrain from Prosecuting, etc.
    A contract is not illegal on the ground that its purpose is to compound a felony unless it appears that there was an agreement on the part of the party injured not to institute a criminal prosecution. The mere hope that it may have such result is not sufficient.
    3. Criminal and Civil Liability of Embezzler of Funds.
    A secretary of a building and loan association who defaults with the association’s money incurs both a criminal and civil liability, — the former to the state, and the latter to the association.
    4. Contract to Contribute Money to Settle Defalcations not Illegal, when.
    A contract between individuals, some of whom áre stockholders and directors of a building and loan association, under which they'agree to raise sufficient funds among themselves to make up the defalcations of the secretary, is not illegal as being a contract to compound a felony, in the absence of a promise or agreement on the part of the association not to institute or cause to be instituted criminal proceedings against such secretary in consideration of its receiving such money; ’and where one of the parties to the contract, in execution of his part of the agreement, voluntarily cancels an indebtedness due him from the association, and the amount thereof is credited to the amount of the secretary’s shortage, he cannot thereafter repudiate such cancellation and recover the amount of such former indebtedness from the association.
    5. Executed Illegal Contract not Set Aside by Courts.
    Where an illegal contract, such as one compounding a felony, has been executed by the parties, the court will not assist either party in recovering back what he has parted with, but will leave all of them where it finds them.
    Error to Lucas common pleas court.
    J. P. Mantón and J. P. Hanley, for plaintiff in error:
    May tbe illegal purpose of a contract be shown? 9 Cyc. 465 and cases cited; Kusworm v. Hess, 7 Dec. Re. 224 (1 Bull. 315); Burns v. Seep, 6 Dec. Re. 847 (8 Rec. 425; 4 Bull. 1067); Spurgeon v. Mc-Elwain, 6 Ohio 442 [27 Am. Dec. 266]; Whetstone v. Bank, 9 Ala. 875 ;■ Ralston v. Boady, 20 Ga. 449; Reynolds v. Nichols, 12 Iowa 398; 9 Cyc. 562; Brogden v. Mariott, 3 Bing. (N. C.) 88; Robertson v. Robinson, 65 Ala. 610 [39 Am. Rep. 17]; Buffandeau v. Brooks, 28 Cal. 641; Clark v. Pomeroy, 86 Mass. 534; Nellis v. Clark, 20 Wend. 24.
    When the promisor knows of the illegal purpose, promise void. Goodrich v. Tenney, 144 111. 422 [33 N. E.‘ Rep. 44; 19 L. R. A. 371; 36 Am. St. Rep. 459]; Tatum v. Kelley, 25 Ark. 209 [94 Am. Dec. 717]; Buck v. Bank, 27 Mich. 293 [15 Am. Rep. 189]; Cannon v. Brice, 3 Barn. & Aid. 179; McKinnel v. Robinson, 7 L. J. Exch. 149; Viser v. Bertrand, 14 Ark. 267; Emerson v. Townsend, 73 Md. ■ 224 [20 Atl. Rep. 984]; White v. Buss, 57 Mass. (3 Cush.) 448; Raymond v. Leavitt, 46 Mich. 447 [9 N. W. 525; 41 Am. Rep. 170]; Hall v. Costello, 48 N. H. 176; Cutler v. Welsh, 43 N. H. 497; Staples v. Gould, 9 N. Y. 520; Critcher v. Holloway, 64 N. C. 526; Spurgeon v. McElwain, 6 Ohio 442 [27 Am. Dee. 266] ; Kusworm v. Hess, 7 Dec. Re. 224 (1 Bull. 315) ; Burns v. Seep, 6 Dec. Re. 847 (8 Rec. 425; , 4 Bull. 1067) ; Standard Furniture Co. v. Van Alstine, 22 Wash. 670 [62 Pac. Rep. 145; 51 L. R. A. 889; 79 Am. St. Rep. 960],
    Courts will not give recognition to a promise of agreement tainted with illegality. 9 Cyc. 481, 500; Weber v. Shay, 56 Ohio St. 116 [46 N. E. Rep. 377; 37 L. R. A. 230'; 60 Am. St. Rep. 743]; Plumer v. Smith, 5 N. H. 553 [22 Am. Dec. 478]; Central Ohio Salt Co. v. Guthrie, 35 Ohio St. 666; Schofield v. Railway, 43 Ohio St. 571 [3 N. E. Rep. 907; 54 Am. Rep. 846]; Crawford v. Wick, 18 Ohio St. 190 [98 Am. Dee. 103].
    Parties in pari delicto. Goodrich v. Tenney, 144 111. 422 [33 N. E. Rep. 44; 19 L. R. A. 371; 36 Am. St. Rep. 459]; Brown v. Bank, 137 Ind. 655 [37 N. E. Rep. 158; 24 L. R. A. 206]; Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571]; Reed v. Johnson, 27 Wash. 42 [67 Pac. Rep. 381]; 57 L. R. A. 404.
    Promises, agreements and acts connected with illegal transactions are void. Nash v. Monheimer, 20 111. 215; Armstrong v. Toler, 24 U. S. (11 Wheat.) 258 [6 L. Ed. 468]; Barton v. Plankroad Co. 17 Barb. 397; Rose v. Truax, 21 Barb. 361; Woodworth v. Bennett, 43 N. Y. 273 [3 Am. Rep. 706]; Jones v. Surprise, 64 N. H. 243 [9 Atl. Rep. j 384]; Buckingham v. Fitch, 18 Mo. App. 91; Webster v. Sturges, 7 111. App. 560; Sturges v. Bush, 5 Day 452; Henderson v. Palmer, 71 111. 579 [22 Am. Rep. 117]; Comstock v. Draper, 1 Mich. 481 [53 Am. Dec. 78]; Beach, Mod. Contr. See. 1422; Wharton, Contracts 339; Luce v. Foster, 42 Neb. 818 [60 N. W. Rep. 1027]; Tracy v. Deatrick, 6 Circ. Dec. 427 (10 R. Ill) ; Tracy v. Dietrich, 56 Ohio St. 770 [49 N. E. Rep. 1118].
    A party in pari delicto may recover what he parted with under illegal contract, if he does not base his right on the illegal contract. Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571]; Manhattan Life Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. Rep. 74; 100 Am. St. Rep. 666]; Ware v. Curry, 67 Ala. 274; Den v. Shotwell, 23 N. J. Law 465; Martin v. Hodge, 47 Ark. 378 [1 S. W. Rep. 694; 58 Am. Rep. 763]; Allebach v. Godshalk, 116 Pa. St. 329 [9 Atl. Rep. 444]; Olson v. Sawyer-Goodman Co. 110 Wis. 149 [85 N. W. Rep. 640; 53 L. R. A. 648] ; Hall ,v. Costello, 48 N. H. 176; Jones v. Building Soc. L. R. 1 Ch. 173.
    Promise made for benefit of third party. Beach, Mod. Contr. See. 201; Dunning v. Leavitt, 85 N. Y. 30 [39 Am. Rep. 617]; 9 Gyc. 386; 7 Am. & Eng. Enc. Law (2 ed.) 109; Beveridge v. Bailway, 112 N. Y. 1 [19 N. E. Rep. 489; 2 L. R. A. 648]; Wheat v. Bice, 97 N. Y. 296; Wright v. Terry, 23 Fla. 160 [2 So. Rep. 6]; Trimble v. Strother, 25 Ohio St. 378.
    Plaintiff relied principally on Insurance Co. v. Hull, 51 Ohio St. 270 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571].
    A. B. Capel and Southard & Southard, for defendant in error:
    Upon the question of the legality of the contract in question. Provident Sav. Life Assur. Soc. v. Edmonds, 95 Tenn. 53 [31 S. W. Rep. 168]; Swope v. Insurance Co. 93 Pa. St. 251; Barrett v. Weber, 6 N. Y. Sup. 434; Butierly v. Blanchard, 1 Rob. (La.) 340; Chitty, Contracts Secs. 498, 513-15-19-24; Walbridge v. Arnold, 21 Conn. 423; Godwin v. Crowell, 56 Ga. 566; Hatch v. Collins, 34 Hun 314; School District No. 61 v. Alderson, 6 Dak. 145 [41 N. W. Rep. 466]; Kellogg v. Larkin, 3 Chand. (Wis.) 133; Armstrong v. Express Co. 63 Tenn. (4 Baxt.) 376; Cass Co. Bank v. Bricker, 34 Neb. 516 [52 N. W. Rep. 575; 33 Am. St. Rep. 649]; Gregory v. Wendell, 40 Mich. 432; Hoover v. Wood, 1 Kan. 509; Bothwell v. Brown, 54 111. 234.
    Courts will not lend their aid to effect contracts whose consideration is illegal, immoral or such as are against public policy; if the agreement be executory, the court will not aid in its enforcement, and if it be executed the court will not rescind it. Butterly v. Blanchard, 1 Rob. (La.) 340; Chitty, Contracts Secs. 498, 513JL5-24; Souhegan Bank v. Wallace, 61 N. H. 24; Thompson, Trial Ev. Sec. 615; Hooker v. DePalos, 28 Ohio St. 251; Jacobs v. Mitchell, 46 Ohio St. 601 [22 N. E. Rep. 768] ; McQuade v. Bosencrans, 36 Ohio St. 446;
      Boll v. Raguet, 4 Ohio 400 [22 Am. Dec. 759]; Moore v. Adams, 8 Ohio 372 [32 Am. Dec. 723]; Kahn v. Walton, 46 Ohio St. 195 [20 N. E. Rep. 203]; Cooper v. Rowley, 29 Ohio St. 547; Williams v. Englebrecht, 37 Ohio St. 383.
    Mutuality of agreement to compound felony. School District No, 61 v. Alderson, 6 Dak. 145 [41 N. E. Rep. 466]; Chitty, Contracts 664; Gregory v. Wendell, 40 Mich. 432; Bartlett v. Smith, 13 Fed. Rep. 263; Fosdick v. Van Arsdale, 74 Mich. 302 [41 N. W. Rep. 931]; Wright v. Crabbs, 78 Ind. 487; Kottwitz v. Alexander, 34 Tes. 689; Bond v. Perkins, 51 Tenn. 364; Puryear v. McGavock, 56 Tenn. 461; Oxford Iron Co. v. Spradley, 51 Ala. 171; Robertson v. March, 3 Seam. (111.) 198; Davis & Rankin Bldg. & Mfg. Co. v. Barber, 51 Fed. Rep. 148; Moss v. Wilson, 40 Cal. 159; Hoover v. Wood, 1 Kan. 509.
    Joint and several contracts. Clark, Contracts 605; Beach, Contracts Sec. 674; Connecticut & P. Ry. v. Bailey, 24 Vt. 465; Wood, Ry. Law Sec. 57; Whittlesey v. Frantz, 74 N. T. 456.
    An act not within the corporate powers of the corporation cannot be rendered operative by ratification. But if the act were one which the corporation might lawfully have done or authorized in the first instance, then unauthorized performance in its behalf may be ratified in the same manner and with like effect by an individual. Mechem, Agency Sec. 118.
    Notice to corporation. Mechem, Agency 730, 731; Loomis v. Bank, 12 Dec. Re. 625 (1 Disn. 285) ; Story, Agency Sec. 140; Railway v. McCoy, 42 Ohio St. 252; East Clev. Ry. v. Everett, 10 Cire. Dec. 493 (19 R. 205).
    Evidence. Armstrong v. Express Co. 63 Tenn. (4 Bast.) 376; Hatch v. Collins, 34 Hun 314; School Dist. No. 61 v. Alderson, 6 Dak. 145 [41 N. W. Rep. 466]; Loud v. Hamilton, 45 L. R. A. 400 (Tenn.); Wharton, Contracts Secs. 353, 540; Wynne v. Whisenant, 37 Ala. 47; Wells v. Thompson, 50 Ala. 84; Moog v. Strang, 69 Ala. 98.
   HULL, J.

This action was brought by the plaintiff to recover $1,160 from the defendant, the Building & Loan Company, which amount the plaintiff claims it owes him. The plaintiff was a member of the defendant company, a corporation of the state of Ohio, and on April 4, 1904, he was, by the books, and in fact, entitled to a credit in the way of deposits and otherwise, in the company. In September following he withdrew, as was his right under the rules of the company, and demanded his money, which was refused, on the grofind that he had canceled and receipted for it for a good and valuable consideration, and in that way-had received his money. This was denied by Eichter; the case went to trial before the court and a jury, and at the conclusion of the testimony a motion was made by each party to direct a verdict in its favor. The finding of the court upon that motion was the same as the finding of a jury would be upon the evidence; and the question is, whether the court was authorized by the evidence in taking the action that was taken — not whether there was a scintilla of evidence either way, but, each party having made this request, the court then stands as a jury. The court sustained the motion of the defendant and directed the jury to return a verdict in its favor. The controversy here is about a certain contract or contracts — papers—which Eichter signed. It is claimed by Eichter that he receipted for this money — cancelled his claim against the bank — by virtue of an illegal contract, one contrary to law and public policy, therefore he is not bound by it; that it was null and void and of no effect legally, that he had a right to recover his money.

This contract grew out of a defalcation by one Mensing, who had been secretary of the company and was a defaulter to the amount of $30,177, and after it was discovered, Eichter, with some nineteen others, entered into an arrangement whereby they were to subscribe and pay enough money to make up this defalcation; this was done and Eichter was-approached on April 4, by two persons and notified of the condition of affairs in the bank, requested to sign this paper which I have referred to, which he did, and it is claimed that this was in furtherance of an arrangement to compound a felony to save Mensing from a criminal prosecution and from being sent to the penitentiary, and therefore, it was, as I have said, contrary to public policy and void.

On the other hand, defendant in error claims that the purpose was, not to compound a felony; that if there was any such purpose on,the part of the parties who signed this paper, including Eichter, that the bank itself was not a party to it, therefore not affected by it.

It is claimed by plaintiff in error further, that there were certain errors committed at the trial of the case, and especially "in the exclusion of testimony, and it is also claimed that the court erred in directing the verdict as it did.

As I have said, Eichter was a stockholder in the bank — a member of the organization, perhaps would be the better term — and he had to his credit in the bank at the time this paper was signed $1,162. He was approached by the two men who requested him to sign this contract, which recites that:

“Whereas, it is represented that H. E. Mensing, as secretary of the Phoenix Building & Loan Company, is short in his accounts with said company in approximately the sum of $30,000, and
“Whereas, said H. R. Mensing has agreed to assign and transfer unto Herman R. Klauser as trustee for the benefit of all the undersigned, all of his property of every kind and character whatsoever, giving unto the said Herman R. Klauser full authority to sell the same for the best price that can be obtained therefor and pay over unto the undersigned the proceeds of said sale, less the amount of his other indebtedness, pro rata upon the amounts herein subscribed.
“Now therefore, we, the undersigned, in consideration of the conveyance by the said H. R. Mensing unto the said Herman R. Klauser, trustee, his property as above provided, and in order to raise the amount of his defalcation for the purpose of reimbursing the Phoenix Building & Loan Company, agree to pay the amount set opposite our names. It being understood however, the sums hereby subscribed are not to be paid unless the total amount of said defalcations are raised.”

The most of these parties had signed this paper before it was presented to Richter, and he signed it and enough other stockholders of the association subscribed sufficient to raise the amount of the defalcation, and as it seems to us from the evidence, in pursuance of this agreement which was entered into on April 4, 1904, Richter, on the evening of that day went to the association building, or bank building as it is called in the record sometimes, and turned over to the association his book in which he kept the record of his transactions with the bank and which showed that it was indebted to him $1,162, and there was written in the book, which he signed, a cancellation of his account and the writing recited that the book was turned over and surrendered to the association for the purpose of having it canceled; everything was done in this writing that could be done to receipt to the bank for this money and constituting a payment of it on the part of the bank to him.

It does not appear that the banking association, as such, had any knowledge of this transaction as between Richter and the other parties who signed this paper — none of the officers of the bank said anything to him about it, did not approach him; did not request him to sign it; no action was taken by the association providing for anything of this kind, and so far as the evidence discloses, it seems to have been a voluntary act on the part of these parties who signed it, they having the purpose in view, probably, of saving Mensing, the defaulting secretary, from any criminal prosecution. He was an acquaintance of theirs and apparently a friend. The writing recites that he is “short” this $30,000. Another purpose that they had in view was to save the association from disaster and bankruptcy. They were all stockholders in the association and interested in its property, all except Klauser the trustee, and he also subscribed; and as appears, if this defalcation had not been made up the association would have become bankrupt or gone into the hands of a receiver with the usual results. I say these parties who subscribed were all interested. Klauser himself was not a stockholder. The man who had been acting as trustee and to whom Mensing conveyed his property also subscribed $5,000, and the other subscriptions run in various amounts, enough to make up the whole amount of the defalcation.

In rebuttal, the plaintiff, Richter, sought to show that another paper writing was drawn up about the same time, perhaps the same day, which recited that Mensing was a defaulter and short in his accounts $30,177. This evidence the court excluded, and that is one of the errors complained of. And it recites further:

“And whereas certain persons have loaned unto the said Herman R. Mensing said amount of $30,177, in order to enable him to make good such shortage and to repay and reimburse the said The Phoenix Building & Loan Company to the amount of his said indebtedness thereto, so that the said Herman R. Mensing may escape prosecution therefor.
“And whereas the said Herman R. Mensing has this day, together with his wife, Minnie C. Mensing, executed and delivered unto the said Herman R. Klauser their promissory note for said sum of $30,177 as evidence of their indebtedness unto the said persons who loaned said sum as above mentioned, it is agreed, etc. ’ ’

This is signed by Klauser and Mensing. It further recites that in order to partially repay the amount of money so loaned and to secure the payment of said indebtedness Mensing agrees to personally convey and deliver unto Klauser as trustee all of his property, both real and personal, and Klauser agrees to take the property and sell it for the best price he can obtain therefor and after taking out of the proceeds the $13,000 that Mensing owes to apply the balance towards the payment of this defalcation or debt to the bank. That is the substance of that writing, making Klauser a trustee for that purpose, and this is the agreement referred to in the other paper which Richter signed.

Now there is no evidence that the bank had anything to do with this paper or that the officers of the bank took any part in it, officially at least, or that the association as such had anything to do with it. There were stockholders of the association present when it was drawn and perhaps some directors; but stockholders or directors, meeting in that unofficial way, would have no power to make a legal contract which would bind the association and certainly would have no power to make an illegal contract, if there was anything illegal about this contract. This paper creating this trusteeship was excluded by the court. There was no evidence that the association was connected with the drafting of this paper in any way. In order to bind it — in order to make that contract legal so far as they were concerned, — it must appear that the association was a party to it in some way; and this not appearing, we think the court was eoi’rect in holding that it was immaterial. What it was that influenced Richter to sign the paper that he did sign, was not material so far as the bank was concerned. Neither was it material so Jar as the association was concerned, or from a legal point of view, that he signed it with a hope of saving Mensing from a criminal prosecution.

In order to make a contract illegal on the ground that it is compounding a felony, it must appear that there was some kind of an agreement on the part of the party or parties who had been injured by the commission of the crime. The mere hope that it may result in preventing a criminal prosecution, is not sufficient. It is not a crime for friends of a man to raise money to pay up a loss of this kind. Mensing owed this debt to the bank. Although there was a criminal liability, there was a civil liability and there was no law against his friends raising the money, if they could, and making up the defalcation, any more than there was a law against Mensing going to the bank with the hope of paying the amount of his defalcation: if there was no promise on the part of the injured party that they would not prosecute him in consideration of such payment.

After this arrangement had been made, Richter went voluntarily to the building of the association and, pursuant to this contract, canceled the indebtedness of the bank to him. The contract recites that the money is to be paid by these parties subscribing-^presumably to the association — the injured party, and as each subscribed the amount that was coming to him from the association, the ordinary way to pay it would be to cancel the amount that the association owed each of them, which would work a payment.

There is another reason why Richter cannot recover this amount back from the bank. The agreement and contract, so far as he is concerned, has been executed! It is well established that courts will not aid in the execution of an illegal contract — if this was an illegal one— but where an illegal contract has been made, or one made for an illegal consideration, and is fully executed, the courts will not assist a party in recovering back what he has paid, but will leave the parties where it finds them. The second paragraph of the syllabus in the case of Hooker v. DePalos, 28 Ohio St. 251, reads as follows:

“The law will not aid a party to such contract, either in its enforcement whilst executory, or in its rescission when executed. ’ ’

Referring to an illegal contract, — and this seems to be the general law of the land, both in this state and elsewhere, that if parties have entered into an illegal contract and carried it out; have paid the money or given whatever consideration was to be given in such contract,— they will not be aided by the courts in rescinding the contract or in recovering back whatever may have been paid. The courts refuse to recognize such contracts as a basis for execution or for rescission or any recovery. But, as I have suggested, it seems to me that there was nothing illegal or contrary to public policy in the contract or paper writing that Richter signed. There was no promise made to him of an illegal character; he was interested in the bank; he was interested in Mensing, and he, along with these other gentlemen, raised the money to make up this defalcation, raised the money to pay this debt that Men-sing owed the association, and it seems to us in any view of it that the fact that it does not appear that the association as such was a party to this arrangement, must be fatal .to Richter’s claim.

Quite a large amount of testimony was excluded by the court. It was all in the line of showing that this was done for the purpose of preventing a criminal prosecution. Offers to prove were made by counsel showing that this was the object, but there was no offer to prove facts that tended to show that the association was a party to prevent a criminal prosecution or a party to these arrangements which were made. It seems to us that the action of the court of common pleas in directing a verdict was correct and we agree with the court in the opinion pronounced at that time by the trial judge in his charge to the jury. The judgment of the court of common pleas will therefore be affirmed.

Haynes and Parker, JJ., concur.


text:
    EMINENT DOMAIN — RAILROADS.,
    [Lucas (6th) Circuit Court,
    March 18, 1905.]
    Hull, Haynes and Parker, JJ.
    Frank Collins et al. v. Craig Shipbuilding Co. et al.
    1. Lanins R. L. 10025 (R. S. 6448) only Applicable where Railroad Occupies Land without Written Authority.
    A railroad company which is occupying land under claim of a written contract executed by the owner cannot be compelled, under Lan. R. L. 10025 (R. S. 6448), to resort to appropriation proceedings to appropriate the land, as such statute only applies where the occupation is without any agreement in writing with the owner.
    2. Usurping Rights Denied by Written Agreement does not Bring Case within Lan. R. L. 10025 (R. S. .6448).
    A railroad company cannot be said to be occupying the lands of another under an agreement which is not in writing within the meaning Of Lan. R. L. 10025 (R. S. 6448), by reason of the fact that it is usurping certain rights prohibited by the written agreement under which it originally entered.
    3. Right of Railroad under Contract not Greater th^ií that of its Assignor.
    Where the right was granted in writing to an individual to lay a spur track upon the lands of the owner for the purpose of connecting with the tracks of a railroad company, upon the condition and limitation that such track should not be used except for the business of the grantee’s company, the right of a railroad company, to whom the grant was assigned by the grantee, can rise no higher under the grant than the right of such grantee.
    4. Railroad Company may be Enjoined from Continuing Possession of Land.
    A railroad company which has taken possession of private property without the consent of the owner and without first making compensation therefor in appropriation proceedings, -may be enjoined from continuing its possession and use of such property.
    5. What no Defense in Action to Enjoin Railroad from Occupying Land.
    It is no defense to an action to enjoin a railroad eompany from* unlawfully continuing its possession and use of private property, that the owner might tender a deed to, and demand compensation from, the company for the land in question.
    E. D. Potter, Ralph Emery and B. F. Brough, for plaintiffs.
    Seiders & Monnette, for defendants, cited:

      Lake Erie & W. By. v. Hancock Co. (Comrs.) 63 Ohio St. 23, 30 [57 N. B. Rep. 1009]; Fries v. Bailway, 56 Ohio St. 135 [46 N. B. Rep. 516]; Lawrence By. v. Williams, 35 Ohio St. 168'; Bailway v. O’Harra, 48 Ohio St. 343 [28 N. E. Rep. 175]; Kramer v. Bailway, 53 Ohio St. 436 [42 N. B. Rep. 252]; Atlantic & G. W. By. v. Bobbins, 35 Ohio St. 531.
   HULL, J.

This is an action brought by the plaintiffs, Frank Collins and the Northwestern Realty Company, who are the successors in title of William A. Collins, to enjoin the defendants, The Craig Shipbuilding Company, The Toledo Belt Railway Company and The Wheeling & Lake Brie Railway Company, and especially the two railroad companies, from the use that they were making of a certain spur or side track running from the Wheeling & Lake Erie railroad tracks down to the lot or land of the Craig Shipbuilding Company, the plaintiffs claiming that such use was in violation of certain conditions and limitations contained in the grant by which the right to lay the track was conferred upon the predecessor of the Craig Shipbuilding Company, to wit, John Craig, from whom the company has acquired this title. The action came on for hearing before us upon a motion for judgment in favor of the plaintiffs upon the pleadings.

It appears from the evidence that in 1886 William A. Collins and Louis Paine were the owners of certain lands lying between the Craig shipbuilding lots and the Wheeling & Lake Erie railroad lots and that they granted to John Craig, who was then the owner of the Craig Shipbuilding Company lots, the right to lay this track to the Wheeling & Lake Erie tracks, by a written grant, and among the conditions and limitations in said grant it was provided that the track should not be used except for the business of the Craig Shipbuilding Company and their purposes or for industries located upon the Craig Shipbuilding Company lot, and the tracks were laid under this grant.

Some years afterward another side track or spur of the Wheeling & Lake Erie Company was built easterly to connect with another track running down to the Wheeling & Lake Erie track and thus connecting with several industries lying east of the Craig shipbuilding lot, the connecting road being known as the Maumee Connecting Company, and the products of these other industries lying east of the Craig shipbuilding lot were transferred on this connecting line to the Craig shipbuilding track, across that and up to the Wheeling road, upon this track in question, thus increasing very largely the transactions upon this track, the right to lay which had been granted to Mr. Craig and in the respect that the traffic was increased and the number of cars largely increased in this manner the conditions of the grant which limited the use to the Craig Shipbuilding Company and the industries thereon, were violated and this action was brought by the plaintiffs as the successors of William A. Collins and Paine, to enjoin the Wheeling & Lake Erie Railroad Company and the other roads from violating those provisions of the grant and to require them to comply with all the provisions of the grant in respect to transportation, etc.

The claim of the railroad companies as set forth in their answer and as argued before us, in brief, is, that the plaintiffs have an adequate remedy at law and therefore there should not be a remedy by injunction. It is said that they have two remedies; that they may tender a deed to this right of way to the Wheeling & Lake Erie and demand compensation, and if not paid, interfere with its use of' the track; or, they may compel an appropriation of that part of the railroad under Lan. R. L. 10025 (R. S. 6448), and that therefore they should not be granted an injunction.

A very large number of authorities were cited by counsel on both sides. We shall not undertake to mention or to review many of them. Now it appears that this condition was contained in this grant; that it is being violated and has been violated for some years, • and that this violation will impose an additional burden upon this land, in that a great many more cars, several times as many perhaps, will be run across the property, than passed over it at the inception of the grant.

The grant was made in writing. Laning R. L. 10025 (R. S. 6448) applies in its express language only to eases where corporations authorized to appropriate are in possession of property without any agreement in writing with the owner thereof, and it provides in that event the owner may serve notice in writing upon the corporation, in the manner providing for service of summons against a corporation, etc., and proceed under the chapter to appropriate the lands, and on their failure to do so, the statute provides what may be done. Now it is said that while this original grant was in writing, the writing only conferred certain privileges upon John Craig, and if it was undertaken to go beyond that, it could not be said that the railroad company were in possession by virtue of the writing, and therefore the owners would come within the provisions of this statute.

It seems to us this is tenable. The original entry here was a written grant. The position of the plaintiffs is, that should they undertake to avail themselves of this statute, they would be met by the proposition-of the railroad company that they were in possession under a writing and that therefore their possession could not be both — and we think this is correct. The original possession was in writing; they have a right of possession with certain limitations and- conditions, but possession for the laying of this track and for the occupancy of this land twenty feet in width was granted to Mr. Craig in writing, and this statute provides that it shall only apply to cases where the possession is not held by any agreement in writing. It cannot be said here that the possession is not in writing because the railroad company is now insisting upon certain rights which were not given by that writing; the contract cannot be wiped out and abrogated by an attempt on the part of the railroad company to go beyond the stipulations of the written agreement, so that it seems to us that it cannot be said that the plaintiffs here might avail themselves of these provisions.

There is another reason why they are not required to do this. The grant was originally made to a private individual, Mr. Craig, who had no power to appropriate or condemn land, and he afterwards assigned it to a railroad company, which has the power of appropriation, but by this assignment to the company they could not acquire any greater rights under the contract than he had; they had no more right, as it seems to us, — it being assigned to them under these circumstances,— to compel the owners of this land to require an appropriation than Mr. Craig would have had. Of course the railroad company has a right to condemn this property for all purposes; under their right of eminent domain they may do that at any time, but it seems to us that the possession not having been taken by .them originally, but having been granted to a private individual without this power of appropriation and this right of eminent domain, that their right so far as this man is concerned, can rise no higher than his and that the owners of this land are entitled to hold their rights as against the railroad company the same as they would if this grant were still held by Mr. Craig.

If the railroad company desires to have full and complete use of this right of way and of these tracks, they have a right under the law to appropriate and condemn. By running this increased number of ears over these tracks they are simply taking the private property of the owners of this land across which the track lies and imposing an additional servitude upon it. The right to use the land is the right not to have any additional burdens imposed upon it beyond the burden stipulated for in the original grant; is a right of property upon their part; a right of private property in which they are protected by the constitution and which cannot be taken from them until just compensation shall have been made to them in money.

It has been held many times that a corporation may be enjoined from taking private property for public purposes without first making compensation for it, and that seems to be what is attempted to be done here. The railroad company has not the right, in our judgment, to compel the landowners to resort to the provisions of this statute, even if they were within it; they must stand upon their contract — the grant has been made that certain cars may be run across these tracks. They áre satisfied with their contract; they do not desire to have their entire property taken away from them for that purpose but they stand upon their contract which they have made and in our judgment they cannot be compelled to abandon the contract in any event and ask the court to require the railroad company to take their entire property rights.

It is claimed further that the landowners might tender a deed and demand compensation for their land. But they do not desire to do this and we do not think the ease is one where that could be done properly. The case cited upon this proposition is that of Fries v. Railway, 56 Ohio St. 135 [46 N. E. Rep. 516]. That was a case where the railroad company entered into possession, as appears from the syllabus, under the verbal consent of the owner and a verbal promise was made that they would compensate him for his land, which they afterwards refused to do and without appropriation proceedings or any agreement in writing they continued to hold the land. The court say:

“Such owner has an election of remedies, either (1) to proceed in the probate court to compel appropriation under Sec. [Lan. 10025] 6448 Rev. Stat.; or (2) by assenting to such possession by the company as an appropriation in fact, and tendering conveyance, to proceed in the court of common pleas to recover compensation.”

Now here was a case where the railroad company had possession, without any contract, agreement or grant such as there is here, without any limitation even, and took absolute possession of the property under a promise to pay him for the whole property and under no limitation that it should only be used for a .certain purpose; they had taken possession with the intention to take full possession and control of the premises and to pay him for it, and afterwards refused to do it, and the court held that he might treat that as an appropriation and, if they so desired, to tender a deed and demand compensation for the land. But that is not this ease, where a grant has been made providing for a certain limitation under which a track can be used and the amount of business that shall be sent over the tracks.

As I say, a great many cases have been cited: Stines v. Dorman, 25 Ohio St. 580, is in point on the general power to grant an injunction under a case not exactly similar to this, but involving the same questions. Also Lawrence Ry. v. Williams, 35 Ohio St. 168; Wagner v. Railway, 38 Ohio St. 32; Balt. & O. Ry. v. West, 57 Ohio St. 161; Niles v. Cedar Point Club, 13 O. F. D. 281 [175 U. S. 300; 20 Supt. Ct. Rep. 124; 44 L. Ed. 171]; Railway v. O’Harra, 48 Ohio St. 343 [28 N. E. Rep. 175], and many others have been cited which I will not mention here. None of them cover a case just exactly like this one but the principles in regard to such action are laid down in them.

The conclusion of the court is, that these parties have a right to have this contract enforced and carried out; that the railroad company is performing repeated acts of trespass upon their land; and, further, that they are taking or threatening to take the property of these landowners without compensation in thus increasing (the number of cars that they are sending and propose to send over these lines; and under the principles of law and equity, as we understand them, they are entitled to an injunction to prevent this until they have been paid for the property, and that they are entitled to stand upon their contract and have it enforced.

The judgment, therefore, will be the same as that of the court below — in favor of the plaintiff and enjoining the defendant from violating this provision of its grant.

Haynes and Parker, JJ., concur


author: HURIN, J.

text:
    ASSIGNMENTS — WORK AND LABOR.
    [Allen (3d) Circuit Court,
    June 25, 1905.]
    Norris, Hurin and Vollrath, JJ.
    Cincinnati, H. & D. Ry. v. Lima Ry. Supply Co.
    No Action at Haw on Partial Assignment op Wages without Debtor’s Consent.
    An action at law will not lie on an assignment of wages already due and to become due, there being no proof that the debtor acquiesced in the assignment, and the amount due being in excess of the amount assignéd.
    Error to Allen common pleas court.
   HURIN, J.

This is an action at láw brought originally before a justice of the peace to recover $40 alleged to be due defendant in error, there plaintiff, by reason of an assignment of $60 of the wages earned and to be earned by an employe of the railway company. Plaintiff recovered judgment before the justice of the peace. The case was appealed by defendant to the common pleas court where the demurrer to the petition was overruled and the case tried to a jury; and apparently on the ground that, at the time of the discharge of the employe, more than the full amount of wages assigned were due said employe from said railway company, a verdict for the full amount, with interest, was returned and judgment rendered by said court. To reverse this judgment, and the overruling of the motion for a new trial, error is prosecuted to this court.

This action was brought as an action at law to recover on an assignment of a part of the wages due and to become due.

On the authority of Pitts. C. C. & St. L. Ry. v. Volkert, 58 Ohio St. 362 [50 N. E. Rep. 924], the judgment of the common pleas court must be reversed.

In this case, Judge Spear, in rendering the opinion of the court, says, on page 369:

“It is conceded that an assignment of a part of a debt cannot be enforced at law unless assented to by the debtor.”

Continuing, he says:

“This principle is held in Manderville v. Welch, 5 Wheat. 277, opinion by Mr. Justice Story. The reason is, that it might subject the debtor to a multiplicity of suits at the instance of each assignee of separate portions of the debt; and as the original creditor would not be a party to those suits, and might thereafter, upon an action for the whole debt, deny the assignments, it would be impossible in a court of law, to protect the rights of all the parties.”

Further .on in the same opinion, the court proceeds to show that, in a suit in equity, where the original creditor and all other claimants may be brought before the court in one proceeding and their rights all settled by one decree, the same reason would not hold.

The case at bar not being a proceeding in equity and being founded on an assignment of a part only of the wages due, and there being no proof of assent by the debtor to the assignment, is squarely within the rule laid down in the case referred to, which must control in this state, whatever may be the rule in other states under the authorities cited by counsel.

The case of Porter v. Dunlap, 17 Ohio St. 591, cited by counsel for defendant in error, is not in point for reason that it appears that the assignment in that case covered the entire amount of wages due and more than that amount. But if it were in point, the latter case of Pitts. C. C. & St. L. Ry. v. Volhert, supra, would control. The judgment of the court below will therefore be reversed with costs, but without penalty. Judgment against defendant in error for costs, for which execution is awarded, and the cause remanded for execution.

Norris and VoIIrath, JJ., concur


text:
    NEGLIGENCE — MUNICIPAL CORPORATIONS.
    [Summit (8th) Circuit Court,
    April, 1905.]
    Marvin, Winch and Henry, JJ.
    Akron (City) v. David Keister.
    Voluntary Assumption of a Known Risk.
    Where a person, having twice before on the same day passed over the same place, the place being a temporary crossing of a street in process of repair, made of ties placed side by side, again drives his wagon across and is thrown out and injured in consequence of the condition of the crossing, he cannot recover from the city which maintained this crossing for his injuries thus sustained as he voluntarily assumed a known risk.
    Error to Summit common pleas court.
    C. F. Beery and S. D. Kenfield, for plaintiff in error.
    I. H. Phillips and N. D. Tibbals, for defendant in error.
   HENRY, J.

This is a proceeding in error prosecuted by the city of Akron to reverse a judgment for $1,000 recovered by David Keister, of Mogadore, at the October term, 1904, of the court of common pleas of Summit county, for injuries by him received on or about August 29, 1900, in consequence of being thrown from his wagon while attempting to turn from East Market street into Adams street in the city of Akron.

The action below was begun September 7, 1901, and three trials have been had. The first trial resulted in a disagreement of the jury. On the second trial plaintiff recovered a verdict and judgment for $1,500, which was reversed by this court, and the cause remanded for retrial. The third trial resulted in a verdict for plaintiff of $1,000, with answers by the jury to special interrogatories. Motions by the defendant below for judgment on these findings and for a new trial were successively overruled. A bill of exceptions exhibiting all the evidence was perfected and a petition in error filed in this court.

The street intersection where the accident occurred was in a torn up condition; the pavement had been taken up on that si¡de of East Market street and a row of ties laid down side by side from the Adams street side to a point within the double tracks of the street railway which there occupies the middle of East Market street. These ties were intended and' used for teams and vehicles to pass from either street to the other, across the unpaved portion of East Market street, until the repairs should be completed. It is claimed, however, that this row of ties was too narrow a passageway and that the city was negligent in maintaining the crossover in an unsafe condition, whereby the wheels of vehicles driven there were liable to, and one of the hind wheels of plaintiff’s wagon, did, in fact, drop down off the ends of the ties to the ground below.

Plaintiff was a man about seventy years old who had been used to driving since he was a boy. He and his grandson, ten years old, had twice driven over the ties on the day of the accident, and were about ,to drive over them again when the accident occurred. On the first occasion they had a load of lumber, and, when about to turn from East Market into Adams Street, they swung around toward the farther curb, in order to complete their turn before striking the row of ties. Proceeding thence up Adams street they unloaded their lumber, save two or three planks, which they left on the wagon as a bed, and returned the way they came. Later they again approached the ties with a heavy chest of tools across the plank. The plaintiff below sat on the chest and drove; his grandson was behind. The horse was steady, but as plaintiff below drove upon the ties, the wagon gave a sudden lurch and die was thrown off and badly injured. Neither the chest nor the boy fell off.

It is not perfectly clear from the evidence how the lurch was caused. The wagon was geared unusually long and the bed was, of course, less firm than when the entire load of lumber was upon it. The row of ties moreover was not quite level, there being a depression of the crossover between the street railway and Adams street, and then a rise or upgrade into Adams street. It is suggested that the wagon in this condition lurched forward off the rails of the street car tracks, or entered this depression, or both, in a more sudden manner than it had before when the wagon was loaded, and that this either directly caused the accident or else caused a little shorter turn so that one of the-hind wheels dropped to the ground.

In the view we take of the matter it is immaterial in what precise way the accident occurred, for certain of the jury’s findings are clear and decisive and sufficiently supported by the evidence. The first three questions, and answers thereto, by the jury, are as follows: '

“1. Was the crossing formed by placing ties on Market street at Adams street, manifestly unsafe for driving over with vehicles? Answer. No, but not safe.
“2. Was’the condition of said crossing known to the plaintiff at the time when he attempted to cross and sustained the injuries of which he complains? Answer. Yes.
“3. Could the plaintiff easily have avoided this crossing? Answer. Could have avoided, but not easily.”

The remaining findings are that plaintiff below was not negligent and that he did not assume the risk. The last is a pure conclusion of law and should not have been submitted to the jury. It cannot in any degree neutralize the force of the second finding, which is to the effect that plaintiff knew the condition of the crossing when he attempted to pass over. It is immaterial whether its dangers were or were net manifest generally, if its condition was known to him. He had other means, though less easy, of reaching his destination, but he chose rather to drive over this crossing knowing its condition. This is clearly the voluntary assumption of a known risk, such as would defeat a recovery under the circumstances of this case.

In Village of Conneaut v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236], held that one who goes voluntarily upon an accumulation of ice on a walk of a village cannot maintain an action against such village for a personal injury resulting to him, if the source of danger is plainly visible. To the same effect are Schaefler v. Sandusky (City), 33 Ohio St. 246 [31 Am. Rep. 533]; Cleveland v. Stofer, 1 O. S. C. D. 300; 33 Bull. 227. It is clearly implied, in Farmer v. Railway, 60 Ohio St. 36 [53 N. E. Rep. 447], that the same rule applies to the driving of teams and vehicles into dangerous places in the public streets of a municipality.

An examination of the testimony shows that the jury could not properly have found otherwise than as they did as to the defendant in error’s knowledge of the condition of the crossing.

We hold, therefore, that this judgment is against the weight of the evidence and is contrary to law, and that the court erred in refusing to render judgment on the special findings for the defendant below. The judgment for the plaintiff below is accordingly reversed.

We can conceive of no useful purpose to be served by remanding this case for a fourth trial, and, therefore, proceeding to render the judgment which the court of common pleas should have rendered, we enter judgment for the plaintiff in error.

Marvin and Winch, JJ., concur.


text:
    ASSESSMENTS — STREETS—EVIDENCE.
    [Franklin (2nd) Circuit Court,
    March 25, 1905.]
    Dustin, Wilson and Sullivan, JJ.
    Samuel Borger et al. v. Columbus (City) et al.
    1. Petitioning for Street Improvement Evidence that Abutting Property will be Specially Benefited.
    The act of abutting property owners in petitioning for a certain street improvement, is evidence tending to show that the improvement, if made, will specially benefit their property, and may properly be treated as an acquiescence on their part to the assessment to pay the cost thereof; but such act does not estop them from challenging an illegal assessment.
    2. Depression in Real Estate Market does not Destroy Special Benefit to Property from Street Improvement.
    Where there was a serious depression in the real estate market immediately after the making of a street improvement, the mere fact that the owners of the. abutting property could not get any more for their property after than before the improvement, is not sufficient to show that their property was not specially benefited by the improvement
    Appeal from Franklin common pleas court.
    G. B. Okey and F. A. Davis, for plaintiff.
    J. M. Butler, for defendant.
   SULLIVAN, J.

Plaintiffs in tbeir petition in this cause admit that a special benefit accrued to their respective lots, by the improvement set ¡forth in their petition, claiming, however, that it did not exceed the amount of $2.50 per front foot. The city, by its answer claims that the assessment is not in excess of benefits.

The testimony of plaintiff’s witnesses, with one exception, is, that there was no special benefit from the improvement; that the market value of the property was no higher after than before the improvement, whilst that of the city is, that the benefit is greater than the assessment. One witness, David Scolie, for defendant, states that the cost was too great in his opinion; the benefits were six dollars per front foot. The witnesses of plaintiff are residents, owners, and occupiers of the property assessed, whilst those called by the city are residents in other parts of the city, not owners of any property upon State street, and mostly persons engaged as real estate agents, all these with the exception of Scolie, testified that the special benefits were greater than the assessments. Upon this testimony the court is asked to determine the amount of special benefits, if any, to the property from the improvement.

Plaintiffs contend that the testimony of those owning property and residing upon the street improved are for this reason entitled to more credit, being the better judges as to the values of their property before and after the improvement, whilst the city contends that its witnesses because of their occupation as real .estate agents, wholly disinterested in the result of this cause, are the better judges and hence their testimony is of greater weight. The question is to be determined from all the testimony considering the interest of witnesses along with the opportunities of knowing the matters about which he or they are called upon to testify. First, we have the admission of plaintiffs that their respective properties are benefited at least two dollars and fifty cents per front foot; one of plaintiff’s witnesses testifies it amounts to about three dollars front foot. Scolie, who owns and occupies property upon the street that is assessed, considering the condition of the street before the improvement, is of the opinion that the benefit amounted to six dollars front foot.

Several witnesses testify that following the completion of the improvement came a serious depression in the market value of real estate; that the property upon this street like all other real estate similarly situated in the city was affected by the depression; that there was but little or no demand for real estate and scarcely any sales, particularly upon- this street, and hence it could not be said that the reason why > owners of property upon this street were not able to get any more for their prop'erty after than before the improvement, was because it was not benefited. If there was no demand because of the depression in prices, the improvement could not create a demand. It must be admitted, .as it is in this case, that a street improvement of this character is a special benefit to abutting property. What that benefit is here, must be determined from the testimony, in which we find a serious conflict.

We notice by an exhibit introduced that some of the plaintiffs in this case by petition to the board of public works, asked that the improvement be made with Hailwood block and the contract awarded to the Ohio Paving Company. This shows that these parties were aware of. what the improvement would cost, and it may be properly treated as an acquiesence on their part, if not an expression of a desire that the improvement be made. Whilst this does not estop them from. challenging an illegal assessment, yet we think it tends to prove that owing to the change the improvement would make in the street a special benefit would accrue to their property.

The conclusion we have reached is, that eleven of the semiannual installments are equal to the special benefits accruing to the respective properties of the plaintiffs’ from the improvement, and it is therefore ordered and adjudged that all assessments over and above said amounts be enjoined and cancelled. Upon the question of interest we agree with the judgment of the court below, and the judgment here upon that question will be the same. The costs will be taxed to the city.

' Dustin and Wilson, JJ., concur.