author: JELKE, J.

text:
    ASSESSMENTS — STREETS—ACTIONS—ESTOPPEL.
    [Hamilton (1st) Circuit Court,
    May 1, 1903.]
    Giffen, Jelke and Swing, JJ.
    Frank Drake et al. v. Cincinnati.
    1. Making Street and Sidewalk, Separate Improvements — Two Assessments of Twenty-five per cent, each may be Made Under Sec. 2771 Rev. Stat.
    The making of a street and the laying of the sidewalk on the same are two separate and distinct improvements, and the limitation imposed upon municipalities by Sec. 2271 Rev. Stat. (repealed 96 O. L. 99; see Sec. 1536-213 Rev. Stat.) that no assessment upon the abutting property to pay “for any improvement shall * * * exceed twenty-five per centum of the value of such lot or land after the improvement is made,” applies to each improvement separately, and not to the aggregate amount of assessments for two separate and distinct impru 'ements on the same street. - (
    2. Limitation to one Assessment in any Five Years in Sec 2283 Rev. Stat. Applies only to Improvements on Different Roads.
    Section 2283 Rev. Stat. (repealed 96 O. L. 99; see Sec. 1536-213 Rev. Stat.), providing that special municipal assessments shall be so restricted that the same territory shall not be assessed within a period of five years to an amount ex-; ceeding twenty-five per cent, of its value, applies only to assessment® to pay for making two different roads or avenues, and not to assessments made under Sec. 2771 Rev. Stat. to pay for making- separate and distinct improvements off the same street. Hence, two assessments under the latter section upon the same property within five years of each other, and equal in each case to tw?nty-five per cent, of the value of the property assessed, to pay for making a ■street and laying a sidewalk on the same, are valid.
    3. Amount and Manner of Making Assessments a Matter of Statute.
    The amount and manner, of making special assessments upon abutting property ■to pay for municipal improvements is a matter of statute, subject only to constitutional limitations. And where the statute is plain and explicit, there is no room for construction.
    4. Municipality Estopped From Impairing Lien of Sidewalk Contractor, When.
    Where a municipal corporation has awarded to a contractor a contract for the construction of a sidewalk, and agrees to furnish him a valid assessment against the abutting property to pay the cost thereof, the municipality is es-topped from thereafter claiming a priority for another assessment on the same property and thereby postpone or defeat the former’s assessment or any ■part thereof.
    5. Issue of Law Cannot be Tried in Equitable Action When Pl/intiff not Interested.
    An issue of law between two of the parties, and in which the plaintiff is in no way interested, cannot be tried in a purely equitable action, but must be tried in a separate action at law.
    6. Costs of Appropriation Proceeding Cannot be Assessed Back.
    The costs of a proceeding to appropriate land for street purposes cannot be assessed back against the abutting land of the owner whose property has been taken.
    A. C. Shattuck, for plaintiff.
    Albert H. Morrill, assistant corporation counsel, for defendant:
    Surface improvements and sidewalk improvements on the same street made at different times by different ordinances and under the authority of different statutes, and not made for the mere purpose of avoiding the twenty-five per cent, statute, are different improvements. Cole v. Hunter, 5 Dec. 14-2 (5 N. P.13); State v. Fugman, 5 Dec. 530 (5 N. P. 14) ; Hunt v. Hunter, 5 Circ. Dec. 90 (11 R. 69) ; Brooks v. Norwood (Vil.), 4 Circ. Dec. 271 (12 R. 257).
    Section 2283 Rev. Stat. applies only to improvements'made to two different streets, and has no application to two separate improvements made on the same street; that assessments in the latter case not exceeding twenty-five per cent, for each improvement may be made under Sec. 2771 Rev. Stat. within five years of each other.
    A contractor, who has been made a party, cannot raise and have determined an'issue'of law, in which plaintiff is not interested in a purely equitable action; his remedy is by a separate action at law.

      L. M. Mongan, for Thomas Evans, the contractor, for the improvement.
   JELKE, J.

It is admitted that the cost of the condemnation of the land must be eliminated from the assessment.

It appears that1 the making of the street and the laying of the sidewalk are distinctly separate improvements.

Section 2271 Rev. Stat. (repealed'96 O. L. 99; see Sec. 1536-213 Rev. Stat.) applies to each improvement separately but cannot be made to apply to them added together.

The real controversy herein is over Sec. 2283 Rev. Stat. (repealed 96 O. L. 99). Plaintiff claims that under this provision the aggregate of these street and sidewalk improvements, being made within five years, cannot exceed twenty-five per cent, of the value of the property. The city contends that Sec. 2283 Rev. Stat. cannot apply because said section provides for making tw6 different streets."

We are of opinion that the city’s contention in this behalf must prevail. We appreciate fully the strength of the argument of plaintiff’s counsel that if property is relieved from excessive assessment for the making of improvements upon different streets, it should be all the more relieved from such assessments piled up on the same street. But this is purely a matter of statute, and the statute is plain and explicit and not open to construction or interpretation on this point.

This point has been directly passed upon by the sixth circuit, opinion per King, J. — Hunt v. Hunter, 7 Circ. Dec. 495 (14 R. 503) — and we approve and follow their conclusion. We cannot find that this point was called to the attention of the court and expressly decided in the case of Bartley v. Cincinnati, 52 Ohio St. 650 [44 N. E. Rep. 1130].

Inasmuch as the’ city contracted to furnish the sidewalk contractor with a valid assessment, we are of opinion that the city cannot urge its assessment to the postponement or defeat of such contractor’s assessment or any part thereof. As between the city and Thomas Evans, to the extent that Evans’ assessment is good, it must’ have a lien upon the property prior to that of the city.'

This is purely' an equitable action and Thomas Evans cannot inject an issue at law between himself and the city into it as to which plaintiff has no interest. Thomas Evans should prosecute that in a separate - suit at law, •md the decree herein will be without prejudice to such action by him.


source: Caselaw Access Project

author: LAUBIE, J.

license: Public Domain

text:
    NEGLIGENCE — TRIAL.
    [Cuyahoga (8th) Circuit Court,
    March 23, 1903.]
    Hale, Marvin and Laubie, JJ.
    (Judge Laubie of the Seventh Circuit sitting in place of Judge Winch.)
    Cleveland Elec. Ry. Co. v. Charles Wadsworth.
    1. Passenger Crossing Tracks Without Taking Precautions for Safety, Negligent.
    It is contributory 'negligence, precluding recovery, for a passenger, upon alighting at night from a street car, to pass around the rear end of the car and attempt to. cross a parallel track upon which cars are running in an opposite direction every three minutes, without looking in that direction, or checking his pace, or taking any precautions for his safety, he having knowledge of the surroundings and situation of the tracks and of the operation of cars thereon.
    2. Where Evidence Presents 'Question of Law, Improper to Submit to Jury.
    Where the only rational conclusion from the evidence m an action for personal injuries is that plaintiff’s negligence.contributed to his injury, the case should be taken from the jury and judgment rendered for defendant.
    Error to common pleas of Cuyahoga county.
    Squi.re, Sanders, & Dempsey, for plaintiff:
    Plaintiff was not a passenger. Creamer v. Street Ry. Co. 156 Mass. 320 [31 N. E. Rep. 391; 16 L. R. A. 4-90] ; Platt v. Railway Co. 2 Hun (N. Y.) 124.'
    Plaintiff was guilty of contributory negligence in failing to take precautions for safety before crossing track. Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631; Cleveland, C. C. & I. Ry. Co. v. Elliott, 28 Ohio St. 340; Pennsylvania Co., v. Rathgeb, 32 Ohio St. 66; Railway Co. v. Whitacre, 35 Ohio St. 627; New York, C. & St. L. Ry. Co. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130] ; Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276] ; Robbins v. Street Ry. Co. 165 Mass. 30 [42 N. E. Rep. 334] ; Scannell v. Railway Co. 176 Mass. 170 [57 N. E. Rep. 341] ; Smith v. Union Trunk Line, 18 Wash. 351 [51 Pac. 'Rep. 400; 45 L. R. A. 169] ; Doherty v. Street Ry. Co. 118 Mich. 209 [76 N. W. Rep. 377; 80 N. W. Rep. 36] ; McCarthy v. Street Ry. Co. 120 Mich. 400 [79 N. W. Rep. 631]; Doty v. Railway Co. 129'Mich. 464 [88 N. W. Rep. 1050] ; Stowers v. Railway Co. 21 Ind. App. 434 [52 N. E. Rep. 710] ; Downing v. Railway Co. 68 Ohio St. 648, unreported; Dum-rner v. Electric Ry. & Light Co. 108 Wis. 589 [84 N. W. Rep. 853] ; Cawley v. Railway Co. 101 Wis. 145 [77 N. W. Rep. 179]; Ryan v. Railway Co. 108 Wis. 122 [83 N. W. Rep. 770] ; Booth, Street Railways Sec. 312; Watkins v. Traction Co. 194 Pa, 564 [45 Atl. Rep. 321],

      W. H. Boyd, J. W. Taylor and F. H. Garry, for defendant:
    The question of negligence 'should have been submitted to the jury. Ellis v. Life Ins. & Tr. Co. 4 Ohio St. 638; Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 19" [43 N. E. Rep. 207; 32 L. R, A. 276] ; Dick v. Railway Co. 38 Ohio St. 389; Stockstill V. Railway Co. 24 Ohio St. 83; Lake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403] ; 7 Am. & Eng. Enc. Law (2 ed.) 456.
    Contributory negligence must be alleged and proven by defendant. Cleveland, .C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631; Baltimore & O. Ry. Co. v. Whitacre, 35 Ohio St. 627; Street Ry. Co. v. Nolthenius, 40 Ohio St. 376.
    Plaintiff was not guilty of contributory negligence as a matter of law. Beach, Contrib. Neg. (2 ed.) Secs. 287, 288, 289, 290; 2 Shearman & Redfield, Negligence (5 ed.) 485a, b, c; Lynam v. Railway Co. 11+ Mass. 83; Robbins v. Street Ry. Co. 165 Mass.'30 [42 N. E. Rep. 33+]'; Murphy v. Transfer Co. 167 Mass. 199 [45 N. E. Rep. 93] ; Brooks v. Street Ry. Co. 22 Neb. 816 [36 N. W. Rep. 529]; Omaha St. Ry. Co. v. Loehneisen, +0 Neb. 37 [58 N. W. Rep. 535] ; Driscoll v. Street Cable Ry. Co. 97 Cal. 553 [32 Pac. Rep. 591] ; Clark v. Bennett, 123 Cal. 275 [55 Pac. Rep. 908] ; Chicago City Ry. Co. v. Robinson, 127 Ill. 9 [18 N. E. Rep. 772; 4 L. R. A. 126] ; Wallen v. Street Ry. Co. 82 Ill. App. 103; Shea v. Railway Co. 50 Minn. 395 [52 N. W. Rep. 902] ; Consolidated Trac. Co. v. Scott, 58 N. J. Law 682 [34 Atl. Rep. 1094; 33 L. R. A. 122] ; Consolidated Trac. Co. v. Haight, 59 N. J. Law 577 [37 Atl. Rep. 135] ; Smith v. Union Trunk Line, 18 Wash. 351 [51 Pac. Rep. 400; 45 L. R. A. 169] ; Burian v. Electric Co. 26 Wash. 606 [67 Pac. Rep. 214] ; Roberts v. Street Ry. Co. 23 Wash. 325 [63 Pac. Rep. 506] ; Traver v. Railway Co. 25 Wash. 225 [65 Pac. Rep. 284] ; Chisholm v. Electric Co. 27 Wash. 237 [67 Pac. Rep. 601] ; Moebus v. Herrmann, 108 -N. Y. 349 [15 N. E. Rep. 415] ; Costello v. Railway Co. 161 N. Y. 317 [55 N. E. Rep. 897]; Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L, R. A. 276] ; Newark Pass. Ry. Co. v. Block,-55 N. J. Law 605 [27 Atl. Rep. 1067; 22 L. R. A. 374].
    Company negligent in not warning plaintiff of danger from other cars. 1 Thompson, Negligence Sec. 1461.
   LAUBIE, J.

This is a proceeding in error brought to reverse judgment of the court below, rendered in favor of Wadsworth against the company for personal injuries received while crossing the tracks of the company at Auburndale avenue, in East Cleveland.

On the trial at the conclusion of the evidence, counsel for the railway company made a motion to take the case from the jury and for the court to enter judgment for defendant, which the court refused to do, and in’this respect we think the court erred.

The evidence on the part of the plaintiff differed in no material respect from the evidence introduced on the part of the defendant as to the accident, and the whole evidence showed beyond any rational doubt that Wads-worth was himself guilty of contributory negligence. He was on the car going east, and he notified the conductor that he desired to get off at Au-burndale avenue. The conductor gave the signal to the motorman and the car began to slow up. Wadsworth was on the rear end of the car, and as the car slowed up and just before it reached the crossing, he notified the conductor that he might go ahead, and he stepped off. Immediately the conductor gave the motorman the signal to go ahead, and the car started at an increased rate of speed. As Wadsworth stepped off, he stepped off facing the east. He says he turned around and walked around the end of the car across the first track and onto the devil strip toward the.second ■track at an ordinary gait, and as he was still stepping forward and was about to touch the south rail of the westbound track, he saw the westbound car and its headlight in front of him, and some portion of the car struck him and knocked him down and injured him. He had been living at Auburndale avenue for some considerable time, and had been using the cars of the street railway company daily; he knew of the situation, the surroundings, and he knew that cars were in the habit of running there on those tracks substantially every three minutes; that he was not upon the crosswalk, or where the crosswalk should be, but that he got off just before he reached the crosswalk. He testified that he remembered all that took place until he was struck, and after that he remembered nothing until after he was at the hospital. On this trial he claimed he remembered everything that occurred up to the time he was struck, although he did not on a former trial; but he-admitted that while upon the car he was thinking of some, matters of business that he had to attend to the following day. He could not remember, as he walked across the tracks, what he was thinking of then. So that, so far as his mind was concerned, it was not upon his surroundings at all; he had not in his mind the fact that cars were running as frequently as he named, westward upon the westbound track which he had to cross, and he did hot look to see; he neither stopped to observe nor did he look eastward upon the westbound track. That was the only direction from which danger could be apprehended, and he was not required to look in both directions, as no cars ran eastward upon the westbound track; With all this knowledge of the surrounding circumstances and the danger to be apprehended, his mind was not upon the daqger, nor upon the question of his own safety, nor whether any car that might be coming from the east might injure him. Without regard at any time to the surroundings, he was going, as he says, at an ordinary gait, and as some of his own witnesses testify at a very lively, quick gait, and he stepped right forward and was in the act of still stepping forward when he was struck. He just had time, he said, to t-hrow up his hands. It was somewhere between ten and eleven o’clock at-night and the headlight on the westbound car was burning brightly.

Now, under such circumstances, even upon his own testimony, which was in ho sense different from that of all the other witnesses, it is evident that there could be no rational conclusion save that his own negligence contributed to his injury.

There can be no question about the negligence of the railway company, of the men who were in charge of the westbound car; they were running at too great a rate of speed, in passing a car that was stopping at this crossing. But it is evident, from his own testimony, and from all the testimony in the case, that the plaintiff was himself guilty of negligence contributing to his injury.

There was no question to submit to the jury; it was simply a question of law for the court to determine, whether or not he had a right to recover.

The case is entirely different from the case referred to, Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]; and is precisely the same character of case referred to by Spear, J., in the majority opinion, when he said, page 201:

“The ground upon which the common pleas directed a verdict was that the plaintiff’s evidence disclosed contributory negligence of such a character as to preclude recovery. In other words, the holding was that, as a matter of law, tbe'plaintiff was guilty of contributory negligence. If the plaintiff’s conduct, as shown by undisputed facts, left no rational inference but that of negligence, then the ruling was right, but if the question of contributory negligence depended upon a variety of circumstances from which different minds might arrive at different conclusions as to whether there was negligence or not, then the ruling was wrong.”

The recovery was affirmed in that case because the plaintiff himself testified that he looked in both directions at the time for an approaching car.

The testimony here was precisely the opposite, and it was the duty of the court under the circumstances, to take the case from the jury and render judgment for the defendant.

Proceeding to render, therefore, the same judgment that the court below should have rendered, the judgment below will be reversed and judgment entered for the railway company for its costs, and the petition of the plaintiff dismissed.


author: WINCH, J.

text:
    NUISANCE — SEWERS—DAMAGES—EQUITY—ESTOPPEL.
    [Cuyahoga (8th) Circuit Court,
    November 30, 1903.]
    Hale, Marvin and Winch, J.J,
    Standard Bag & Paper, Co. v. Cleveland (City).
    1. Equity May Restrain Nuisance or Award Damages.
    In an action to restrain the commission of a nuisance and to recover damages therefor, equity has jurisdiction and 'damages may be awarded, even if the court for some reason considers that it will not grant an injunction.
    2. Action Does not Abate upon Transfer of Plaintiff's Title, When.
    Such action does not abate upon transfer after suit brought of plaintiff’s title to the property damaged by continuance of the nuisance, if plaintiff’s grantee participates in the trial and ratifies its prosecution.
    3. Knowledge of Plans and Silence Alone not Such Laches as to Estop.
    Mere knowledge that a city is constructing a system of sewers at large expense which may cast filth upon one’s land, and failure to protest, when it does not appear that the plaintiff in any way encouraged the adoption of the system, or induced the city to so direct its sewers, do not work an estoppel or constitute such laches as to bar a recovery in an action against the city for maintaining a nuisance.
    4. Public Nuisance by Plaintiff no Answer to Private Nuisance by Defendant.
    In an action against a city by the proprietor of land within it through which runs a stream, to restrain the city from polluting the stream to his special damage, it is no defense that the proprietor also pollutes the stream, contributing to a public nuisance, no special damage to the city as a lower riparian proprietor being shown.
    5. Prescription as Defense in Nuisance Case.
    Prescriptive right to flow sewage into a stream can be maintained as a defejise only for the quantity of sewage originating the right, and not for any increase ’ thereof.
    6. No Joint Liability for Several 'Nuisances, When.
    Where a city and individuals are casting filth into a stream to the damage of a lower riparian proprietor, the city can be held liable only for the quantum of pollution caused by itself, and not for that caused by individuals though they are situated within the limits of the city.
    7. Damages Computed to, in Equitable Action.
    In an equitable action to enjoin a nuisance and for damages, the damages, if allowed, should be computed to the first day of the trial term.
    Appeal by defendant.
    Horr & Lewenthal, for plaintiff:
    Transfer of title no defense. Section 5012 Rev.'Stat.; Lowry v. Anderson, 57 Ohio St. 179 [48 N. E. Rep. 810] ; Wolf v. Coddington, 5 Circ. Dec. Gil (12 R. 26T) ; Stuffiebeem v. Adelsbach, 135 Cal. 221 [67 Pac. Rep. 140] ; McGean v. Railway Co. 133 N. Y. 9 [30 N. E. Rep. 647]; Rodgers v. Pitt, 96 Fed. Rep. 668; Drouilhet v. Pinckard, 42 S. W. Rep. 135 (Tex. Civ.,App.); Story, Eq. PI. Sec. 156; 1 Bates, Pleadings 43; Chickasaw Co. v. Pitcher, 36 Iowa 593; New York Code Civ. Proced. 844.
    The general principles entitling the plaintiff to relief are well established by the following cases: Rhodes v. Cleveland, 10 Ohio 159; 28 Am. & Eng. Enc. Law (2 ed.) 974; 2 Dillon, Mun. Corp. Sec. 1074; Chapman v. Rochester, 110 N. Y. 273 [18 N. E. Rep. 88; 1 L. R. A. 296] ; Central & H. Ry. Co. v. Rochester, 127 N. Y. 591 [28 N. E. Rep. 416]; Pine v. New York, 103 Fed. Rep. 337; Mansfield v. Hunt, 10 Circ. Dec. 567 (19 R. 488) ; Moak’s Underhill, Torts 469; Platt v. Waterbury, 72 Conn. 531 [45 Atl. Rep. 154; 48 L. R. A. 691] ; Smith v. Sedalia (City), 152 Mo. 283 [53 S. W. Rep. 907] ; Schumacher v. Shawhan, 67 S. W. Rep. 717 (Mo.).
    The right enforcible in equity. 1 Pomeroy, Eq. Jurisp. Secs. 235, 236, 237; Lynch v. Railway Co. 129 N. Y. 274 [29 N. E. Rep. 315; 15 L. R. A. 287] ; Gunsaullus v. Pettit, 46 Ohio St. 27 [17 N.rE. Rep. 231] ; Chapman v. Rochester, 110 N. Y. 273 [18 N. E. Rep. 88; 1 L. R. A. 296] y Lamming v. Galusha, 135 N. Y. 239 [31 N. E. Rep. 1024] ; Platt v. Waterbury, 72 Conn. 531 [45 Atl. Rep. 154; 48 L. R. A. 691] ; Goodall v. Crofton, 33 Ohio St. 271; Stines v. Dorman, 25 Ohio St. 580, 583; Crawford v. Rambo, 44 Ohio St. 279, 287 [7 N. E. Rep. 429] ; Wood, Nuisance Sec. 778; Lembeck v. Nye, 47 Ohio St. 336, 354 [24 N. E. Rep. 686; 8 L. R. A. 578] ; Letts v. Kessler, 54 Ohio St. 73, 82 [42 N. E. Rep. 765; 4 L. R. A. 177] ; 1 Am. & Eng. Enc. Law (2 ed.) 69; Pollock v. Ship Building Co. 56 Ohio St. 655, 673 [47 N. E. Rep. 582] ; Cilly v. Cincinnati, 7 Re. 3.44 (2 Bull. 135) ; Fox v. Fostoria, 8 Circ. Dec. 39 (14 R. 471) ; Beach, Injunctions Sec. 1094.
    Avoidance of multiplicity of suits alone sufficient to give a court of equity jurisdiction. Fox v. Fostoria, 8 Circ. Dec. 39 (14 R. 471) ; State v. Taylor, 25 Ohio St. 279, 280; Rouse v. Martin, 75 Ala. 510 [51 Am. Rep. 463] ; Board of Supervisors v. Deyoe, 77 N. Y. 219, 225; Campbell v. Seaman, 63 N. Y. 568 ; Beach, Injunctions Sec. 1042; Demopolis (City) v. Webb, 87 Ala. 659 [6 So. Rep. 1-08]; Pomeroy, Eq. Jurisp. Secs. 139, 1351; Carlisle v. Cooper, 21 X-. J. Eq. 576, 578; Chapman v. Rochester (City), 110 N. Y. 273 [18 N. E. Rep. 88; 1 L. R. A. 296] ; Railway Co. v. Dey, 1 L. R. A. 745.
    Judgment may lie rendered for damages alone. 1 Pomeroy, Eq. Jurisp. '¿46; Beach, Injunction ...... 1058; Pomeroy, Rem. & itcmM.' Rights Sec. 78.
    Damages assessable to date of decree. 21 Am. & Eng. Enc. (2 ed.) 732; Webb’s Pollock, Torts 519; Pomeroy, Eq. Jurisp. Secs. 237, 242; People v. Mould, 37 Hun (N. Y.) 38; Comminge v. Stevenson, 76 Tex. 642 [13 S. W. Rep. 556]; Carmichael v. Texarkana, 94 Fed. Rep. 561, 575; Lynch v. Railway Co. 129 N. Y. 274 [29 N. E. Rep. 315; 15 L. R. A. 287]; Hopkin v. Hamilton Co. 2 Ont. Law Rep. 240, 248; Pomeroy, Rem. & Remed. Rights Sec. 78, 81; Pappenheim v. Railway Co. 128 N. Y. 436 [28 N. E. Rep. 518; 13 L. R. A. 401] ; Vandervoort v. Gould, 36 N. Y. 639.'
    Governmental authority no defense. Grey v. Paterson (City), 58 N. J. 1 [42 Atl. Rep. 749; 48 L. R. A. 717] ; Platt v. Waterbury (City), 72 Conn. 531 [45 Atl. Rep. 154; 48 L. R. A. 691] ; Crossville v. Stuart, 77 Ill. App. 513; Peterson v. Santa Rosa, 119 Cal. 387 [51 Pac. Rep. 557] ; 24 Am. & Eng. Enc. Law (1 ed.) 946; New York, C. & H. Ry. Co. v. Rochester (City), 127 N. Y. 591 [28 N. E. Rep. 416]; Moak’s Underhill, Torts 469; Smith v. Sedalia, 152 Mo. 283 [53 S. W. Rep. 907] ; Beach, Injunction Sec. 1094; Carmichael v. Texarkana, 94 Fed. Rep. 561, 572; Pine v. New York, 103 Fed. Rep. 337; 2 Dillon, Mun. Corp. Sec. 1074.
    Pollution by others immaterial. Beach, Injunctions Sec. 1060; 21 Am; & Eng. Enc. Law (2 ed.) 690, 691; Barrett v. Cemetery Assn. 159 Ill. 385 [42 N. E. Rep. 891; 31 L. R. A. 109] ; Wood, Nuisance Sec. 689; Moore v. Building Assn. 28 S. W. Rep. 1033 [9 Tex. Civ. App. 404]; Laflin v. Tearney, 131 Ill. 322 [23 N. E. Rep. 389; 7 L. R. A. 262] ; Indianapolis Water Co. v. Strawboard Co. 57 Fed. Rep. 1000; Rafter & Baker, Sewage Disposal 585; Beach, Injunctions Sec. 1060; Platt v. Waterbury, 72 Conn. 531 [45 Atl. Rep. 154; 48 L. R. A. 691] and notes; High, Injunctions Secs. 799, 800; Wood, Nuisances Sec. 689; Austin (City) v. Cemetery Assn. 28 S. W. Rep. 528 [87 Tex. 330],
    The doctrine of estoppel is wholly inapplicable to the proof in this case. 1 Story, Equity 60; 11 Am. & Eng. Enc. Law (2 ed.) 163; Cas-sady v. Cavenor, 37 Iowa 300; Chapman v. Rochester, 110 N. Y. 273 [18 N. E. Rep. 88; 1 L. R. A. 296] ; Campbell v. Seaman, 63 N. Y. 568; Learned v. Castle,-78 Cal. 454 [18 Pac. Rep. 872; 21 Pac. R^p. 11]; Cilly v. Cincinnati, 7 Re. 344 (2 Bull. 135); Leonard v._ Spencer, 108 N. Y. 338, 346 [15 N. E. Rep. 397]; Beach, Injunctions Secs. 1061, 1062; Indianapolis Water Co. v. Strawboard Co. 57 Fed. Rep, 1000; Fox v. Fostoria, 8 Circ. Dec. 39 (14 R. 4-71); Schumacher v. Shawhan, 67 S. W. Rep. 717 (Mo.).
    Acquiescence and laches. 1 Am. & Exrg. Enc. Law 775; Learned v. Cas-tie, 78 Cal. 454 [18 Pac. Rep. 872; 21 Pac. Rep. 11] ; Cilly v. Cincinnati, 7 Re. 344 (2 Bull. 135) ; Campbell v. Seaman, 63- N. Y. 568; Leonard v. Spencer, 108 N. Y. 338, 346, 347 [15 N. E. Rep. 397] ; Beach, Injunctions Secs. 1061, 1062; Indianapolis Water Co. v. Strawboard Co. 57 Fed. Rep. 1000; Fox v. Fostoria, 8 Circ. Dec. 39 (14 R. 471).
    .Not sufficient to show that the use has been continuous in point of time merely. It must also be shown that the easement has been used in substantially the same manner and to the same extent during the whole period. 22 Am. & Eng. Enc. Law (2 ed.) '208; Cotton v. Manufacturing Co. 54 Mass. (13 Mete.) 429; Buckingham.v. Smith, 10 Ohio 288, 299; American Bank Note Co. v. Railway Co. 129 N. Y. 252 [29 N. E. Rep. 302]; 1 High, Injunctions Sec. 799, citing Holsman v. Bleaching Co. 14 N. J. Eq. (1 McCart.) 335; Platt v. Waterbury, 72 Conn. 531 [45 Atl. Rep. 154; 48 L. R. A. 691] ; Middlesex Co. v. Lowell, 149 Mass. 509 [21 N. E. Rep. 872] ; Boston Rolling Mills v. Cambridge, 117 Mass. 396; Cilly v. Cincinnati, 7 Re. 344 (2 Bull. 135) ; Shaw v. Queen City Forging Co. 10 Dec. 107 (7 N. P. 254) ; 21 Am. & Eng. Enc. Law (2 ed.) 735; Blackburn v. Sonus, L. R. 5 Irish.
    The. court will not balance conveniences in this case between plaintiff and the city. 1 Am. & Eng. Enc. Law 71; Beach, Injunctions Sec. 1067 and authorities there cited; Hennessy v. Carmony, 50 N. J. Eq. 616 [25 Atl. Rep. 374] ; High, Injunctions Sec. 746; Cilly v. Cincinnati, 7 Re. 344 (2 Bull. 135).
    N. D. Baker, C. J. Estep and H Payer, city solicitors, for defendant:
    Effect of transfer of title after commencement of action. Hutton v. Railway Co. 19 App. Div. 243 [46 N. Y. Supp. 169] ; McKee v. People, 36 N. Y. 113,119; 1 Stobers N. Y. Code p. 44, Sec. 756; Secs. 4993 to 5012 Rev. Stat.; Lowry v. Anderson, 57 Ohio’ St. 179 [48 N. E. Rep. 810]; Phoenix Ins. Co. v. Carnahan, 63 Ohio St. 258, 268 [58 N. E. Rep. 805] ; McGean v. Railway Co. 133 N. Y. 9 [30 N. E. Rep. 647].
    Right to injunction. Johnson v. Avondale, 1 Circ. Dec. 124 (1 R. 229) ; 86 Mass. (4 Allen) 51; Toledo Elec. St. Ry. Co. v. Railway Co. 6 Circ. Dec. 578 (10 R. 180) ; Toledo St. Ry. Co. v. Railway Co. 1 Dec. 33 (7 N. P. 211) ; Marshall v. Moseley, 21 N. Y. 280, 283, 292, 293.
    No damages, if injunction is not granted. 2 Story, Eq. Jurisp. Sec. 794.
    Plaintiff can recover only for the quantum of pollution caused by the city if recovery can be had at all. Chipman v. Palmer, 77 N. Y. 51; 15 Enc. PI. & Pr. 557; Baldwin v: Calkins, 10 Wend. 167; Miller v. Highland Ditch Co. 87 Cal. 430 [25 Pac. Rep. 550]; 1 Dayton 30; Little Schuylkill Nav. Co. v. Richards, 57 Pa. St. 142.

      Damages to the commencement of the action only. Thayer v. Brooks, 17 Ohio 489; 26 Hun (N. Y.) 120; Plate v. Railway Co. 37 N. ■Y. -172, -173.
    Plaintiff would not be entitled to damages even in an action at law. Hamilton (City) v. Ashbroolc, 62 Ohio St. 511 [57 N. E. Rep. 239] ; Niles Works v. Cincinnati, 13 Re. 245 (2 Disn. 400); Canton (City) v. Shock, 66 Ohio St. 19, 20 [63 N. E. Rep. 600] ; Valparaiso (City) v. Hagen, 153 Ind. 337 [54 N. E. Rep.-1062; 48 L. R. A. 707].
    Plaintiff comes with unclean hands. Cassady v. Cavenor, 37 Iowa 300; 1 Pomeroy, Equity Secs. 397, 398. ' •
    Plaintiff is estopped. Chapman v. Railway Co. C Ohio St. 120; Ivel- • logg v. Elv, 15 Ohio St. 6-1; Goodin v. Canal Co. 18 Ohio St. 169 ; Pennsylvania Co. v. Platt, 47 Ohio St. 366, 382 [25 N. E. Rep. 1028] ; Goodall v. Crofton, 33 Ohio St. 271, 276; Beach, Injunctions Sec. 1061; 2 Story, Equity Sec. 317; 21 N. J. Eq. 283.
   WINCH, J.

This is an action tried to the court on appeal from the common pleas court, the plaintiff alleging that it has been specially damaged'in its business of making paper, by the acts of the city of Cleveland in emptying certain sewers into Kingsbury run, a natural watercourse flowing through plaintiff’s premises.

The petition sets forth that plaintiff in its business formerly used the water from the run in-large quantities but that in 1898 the pollution of the stream from said sewers became so great that it was compelled to largely discontinue the use of said water and to purchase it from the city whereby it was greatly damaged, and for which damages it asks judgment and further prays for an injunction restraining the city from continuing to discharge its sewers into said run.

The city has interposed certain defenses which are hereinafter considered. '

A preliminary inquiry must be made as to whether this action can be maintained in equity.

It is well settled in Ohio that a municipal corporation which causes its sewage to be emptied into a natural watercourse, thereby creating a nuisance inflicting special and substantial damages to a ripariain proprietor, is liable in an action for the damages so sustained. Mansfield v. Balliett, 65 Ohio St. 451 [63 N. E. Rep. 86] ; Mansfield v. Hunt, 10 Circ. Dec. 567 (19 R. 488); Rhodes v. Cleveland, 10 Ohio 159, 160.

The jurisdiction of courts of law over cases of private nuisance is not, however, exclusive.

It was said in the case of Fox v. Fostoria, 8 Circ. Dec. 39, 44 (14 R. 471) :

“It may be conceded plaintiff might bring and maintain suits for damages, in every instance where he suffers da'mage, and might recover; but inasmuch as the obstruction here is permanent, entailing damage continuously, and necessitating freqüent and continuous litigation with uncertain results and certain costs, expense and trouble, we suggest that the remedy at law is not adequate.”

While equity has assumed jurisdiction ot nuisance cases for many reasons (among which may be mentioned the following — because compensatory relief is insufficient and preventive remedy is necessary to the ends of justice; because the cause of action is continuous and the nature of the damage is such as not to be susceptible of proper assessment by a jury; and because the damages are too small to warrant a judgment) perhaps the principal reason why equity takes jurisdiction in cases of continuing nuisance is because thereby a multiplicity of suits is avoided.

The prevention of a multiplicity of suits is a very favored object with courts of equity, and perhaps more favored in Ohio than in many other states. The extent to which the doctrine has been carried is illustrated by the case of Blair v. Newbegin, 65 Ohio St. 425 [62 N. E. Rep. 1040],

Plaintiff’s petition and proof bring it squarely within this equity jurisdiction. We have in this case a continuing nuisance which is causing special damage to the plaintiff in its business ; as often as a suit at law may be brought to assess such damages a new cause of action arises out of the same relation of the parties and continues until another such suit may be brought. Hence arises a multiplicity of suits. Again, compensatory relief under the circumstances of this case is certainly insufficient, and preventive relief is prayed for; whether or not, in view of the situation of the defendant, preventive relief will be granted does not affect the jurisdiction of the court. Such is the doctrine laid down by Pomeroy, Rem. & Remed. Rights Sec. 78:

“When the plaintiff possesses or supposes himself to possess primary rights both legal and equitable arising from the same subject 'matter or transaction, and avers the necessary facts in his pleadings and prays for both the remedies corresponding to the different rights, but on the trial fails to establish his equitable cause of action, his action should not therefore be dismissed.”

This doctrine was followed in the case of Lynch v. Railway Co. 129 N. Y. 274 [29 N. E. Rep. 315; 15 L. R. A. 287], and many similar cases might be cited, so that we conclude that in an action to restrain the commission of a nuisance and to recover damages therefor, equity has jurisdiction and damages may be awarded even if the court for some reason considers that it will not grant an injunction.

Without reciting all the facts in this case, which would be more properly set out in a finding of facts than in an opinion, it is sufficient to say that plaintiff has made out a case under the general rules above set forth, unless there is such merit in one or more of the several special defenses interposed by the city as to preclude any relief for plaintiff.

Let us examine these special defenses.

1. It is admitted that after the commencement of this action in the court below, the plaintiff parted with its title and the possession of its property on Kingsbury run, and from this fact it is argued that it thereby divested this court of jurisdiction of this cause, and that plaintiff must be remitted to its action at law; that equity cannot raise its arm to protect a party in the enjoyment of something that party has lost by its own voluntary act.

In this court, however, as well as in the court below, the grantee of plaintiff and present owner of the property appeared at the trial of the case, ratified its prosecution by the plaintiff and participated in the trial.

Plaintiff claims that Sec. 5012 Rev. Stat. applies, and that no duty rests upon it to have any affirmative entry made by the court regarding the transfer of title; that the suit is lis pendens and its determination binds the actual owner; that if the defendant for any reason desires substitution or joinder, it should ask for it. We think plaintiff is right.

Section 5012 Rev. Stat., after providing that actions shall not abate on account of the marriage of a female party or upon the disability of a party, reads:

“And upon any other transfer of interest the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted for him.”

“We think this action may continue in the name of. the original party. Of course the new owner of the property will be bound by any order made in this case, though it has made no application for substitution. This statute fits the case exactly, and in this conclusion we are not without authority to sustain us.

In the case of Stufflebeem v. Adelsbach, 135 Cal. 221 [67 Pac. Rep. 140],. being an injunction suit to restrain interference with a ditch, a similar statute was similarly applied.

In the case of McGean v. Railway Co. 133 N. Y. 9 [30 N. E. Rep. 647], an action to restrain the operation and maintenance of defendant’s elevated railway on a street in front of plaintiff’s premises and to recover damages, a similar construction was put upon a similar statute.

2. From- the fact that the evidence shows that the president df the plaintiff company was present and had knowledge of the system of sewers which was being constructed by the city at large expense, at the time of their construction; that he at that time made no protest; that he made no inquiry at the city hall to ascertain the extent of the contemplated discharge of sewage and was silent, it is argued that by his conduct he acquiesced in the construction of said sewers and that therefore plaintiff should be estopped from maintaining this action.

We do not think the facts in the case warrant the application of the doctrine of estoppel. In the language of the opinion in Chapman v. Rochester, 110 N. Y. 273 [18 N. E. Rep. 88, 89] :

“It does not appear that the plaintiff in any way encouraged the adoption of that system, or by any act or word he induced the city authorities to so direct the sewers that the flow from them should reach his premises.”

See also Cilly v. Cincinnati, 7 Re. 344 (2 Bull. 135), and Fox v. Fostoria, 8 Circ. Dec. 39 (14 R. 471).

3. The defense of laches pleaded in the second amended answer is based upon the same facts as the defense of estoppel, and fails for the same reason that that defense fails.

4. Defendant urges that plaintiff should have no standing in a court of equity because for twenty years it has been doing the very thing about which it complains that the city is doing; in other words, that plaintiff’s hands are not clean.

It was shown in the evidence that below the place where plaintiff has been drawing water from Kingsbury run it has an - effluent that- carries back into the run a large volume of water holding in suspension and solution the dirt, coloring matter and chemicals coming from the working of rags' and paper used in its business, and also some sewage. The city says it has a right to make this defense because it is itself a lower riparian proprietor as well as an upper proprietor and the subject matter of this suit is the pollution of Kingsbury run.

While the city may be a lower riparian proprietor, it does not appear that it has ever complained of the acts of plaintiff in polluting the stream nor has it shown or attempted to show any damage to it therefrom. The subject of this suit is not alone the polluting of Kingsbury run, but the special damage resulting therefrom.

It is not a public nuisance which plaintiff, as one of the public, seeks to abate, but a private nuisanc'e causing it special damage. The defendant city máy complain that plaintiff is causing a public nuisance, but that matter is not an issue in this case.

5. Defendant pleads a prescriptive right to use Kingsbury run for sewage purposes. This would be a good defense if proved, subject to the limitations usually put upon such prescriptive right by the courts and set forth in Am. & Eng. Enc. Law (2 ed.) 735, as follows:

“The right of prescription is restricted to and measured by the adverse user that originates it; it must be" shown that the user, during the entire period by which the right is fixed, has produced an injury of the same grade and character as that complained of. • For any increased user causing material injury the right of prescription cannot be set up as a defense.”

1 The facts in this case show that for more than twenty-one years -defendant has used Kingsbury run for the disposal of a certain amount of sewage, but that such use has increased materially in the last few years. The amount of sewage that defendant has thus proved its right to throw into Kingsbury run can be ascertained from the facts and the matter "will be again adverted to when we come to the question of whether or not plaintiff has proved that it has been substantially damaged as claimed by it.

6. Defendant claims that plaintiff has not shown by a fair preponderance of the evidence that the city of Cleveland has caused the pollution that has rendered impossible the use of Kingsbury run in the manner that plaintiff was using it for mechanical purposes, but that it is just as fairly deducible from the evidence that others may have caused it, and that therefore defendant is not liable.

To sustain this proposition defendant’s counsel cite as follows:

In Chipman v. Palmer, 77 N. Y. 51, the court of appeals of the state of New York declared this rule in the syllabus :

“In an action of nuisance against several acting independently in polluting a stream by the discharge of sewage from the premises of each, each is liable only to the extent of the separate injury committed by him.”

On page 53, the court said:

“The liability commences with the act of the defendant upon his own premises, and this act was separate and independent of and without any regard to the act of others. The defendant’s act, being several when it was committed, cannot be made joint because of the consequences which followed in connection with others who had done the same or a similar act. It is true that it is difficult to separate the injury; but that furnishes no reason why one tort feasor should be liable for the act of others who have no association and do not act in concert with him. If the law was otherwise, the one who did the .least might be made liable for the dam.ages of others far exceeding the amount for which he really was chargeable, without any means to enforce contribution or to adjust the amount among the different parties. So also proof of an act committed by one person would entitle the plaintiff to recover for all the damages sustained by the acts of others, who severally and .independently may have contributed to the injury. Such a rule cannot be upheld by any sound principle of law. The fact that it is difficult to separate the injury done by each one from the others furnishes no reason for holding that one tort feasor should be liable for the acts of others with whom he is ■ not acting in concert.”

In Little Schuylkill Nav. Co. v. Richards; 57 Pa. St. 142, the court said:

“True, it may be difficult to determine how much dirt'came from each colliery, but the relative proportions thrown in by each may form some guide, and a jury, in a case of such difficulty, caused by the party himself, would measure the injuiw of each with a liberal hand. Bu.t the difficulty of separating the injury of each from the others would be no reason that one man should be held to be liable for the torts of others without concert. It would be simply to say, because the plaintiff fails to prove the injury one man does him, he may therefore recover from that one all the injuries that others do. This is bad logic and hard law. Without concert of action no just suit could be brought against the owners of all the collieries, and clearly this must be the test.”

From these authorities we gather the rule to be that while one tort feasor is not liable for the acts of others who have no association and do not act in concert with him, he is liable for his own acts. Whether in this case from the evidence we can determine the quantum of pollution caused by the city is another matter to be taken up when we come to the question of damages. We agree with counsel for the city that for such quantum alone can the city be held liable.

7. Having come to the conclusion that plaintiff has proved its case and that defendant has shown no good reason why plaintiff should not recover-, it remains to inquire whether, in fact,-plaintiff has been materially damaged by the acts of the defendant, and if so, to what extent.

We think the evidence fully shows:

“That the plaintiff’s mill .was located forty years ago on the banks of the stream known as Kingsbury run in the city of Cleveland, and has ever since continuously been devoted to the manufacture of paper; that the mill site contains about nine acres of land; that the mill was operated up to -April 30, 1898, under the ownership of The Cleveland Paper Company. From April 30, 1898, to February 1, 1903, under the ownership of The Standard Bag & Paper Company; and since February 1, 1903, The Cleveland-Akron Bag Company, grantee of the present plaintiff; that the capacity of the mill has greatly increased, there having been a one-tenth increase in its output since April 20, 1898; that the improvements on the property consist of extensive buildings, complicated and valuable machinery, requiring about 450 horse power now furnished by an engine of the compound condensing type, but prior to November, 1900, by three engines, one of which of about 300 horse power was of the simple condensing type; that it required about the same amount of water for the condensation in the old engine that it does in the new; that the process of manufacture in the mill is the customary one requiring the free use of water for washing, beating and the preparation of raw material; that water is required for the operation of the paper machines, for use in the boilers and in the condenser; that the total requirements and actual use since 1898 have been 1,000,000 gallons daily; that the owners have taken unusual pains to procure .water adapted to their purpose from springs and other sources more or less permanent and more or less remote from their manufacturing site, piping water for distances of one-half to two-thirds of a mile from their sources; that the plaintiff has available for use in its mill from springs and other sources of supply which do not involve a great expense, about 400,000 gallons of water daily, a portion of which is furnished them permissively and might be withdrawn at any time; that they are under the necessity of obtaining about 600,000 gallons of water daily from other, sources; that in 1891, under a change of management, the demand for water for the first time was so increased beyond the former sources of supply as to necessitate procuring it elsewhere; the only available sources of. supply were the water furnished by the city of Cleveland through its waterworks system and the water flowing through the plaintiff’s premises in the bed of Kingsbury run. An intake was then constructed from Kingsbury run protected with a strainer and equipped with a filtration plant, and the water was conducted from the run mto the pump and condenser of the engine. The product of the engine condenser was pumped into a tank on the hillside being at a temperature of about 114 degrees Fahrenheit and from there was all drawn down into the mill and used in the usual processes of manufacture. These processes are such as to require the heating of the water. Prior to the year 1898 the plaintiff had found it necessary to occasionally clean filth from their screen at the intake and to take out and renew the filter and remove from it filth which had accumulated therein. This accumulation of filth, both on the screen and in the filter and evidence of its existence in the water as used in the mill, rapidly increased during the year 1898 until in the. fall of that year, in November, it became impossible to so remove from the water taken from Kingsbury run the foreign matter in it as to permit of its use. Since that time the product of the condenser has of necessity been-largely wasted, only one-sixth of it being available for the manufacture of paper, and that only in the earlier processes for washing of extremely dirty material. The plaintiff was then obliged to and did heat the water in its washers and beaters by the induction thereto of live steam, and was obliged to and did use a larger amount of water from the only other reasonably available source of supply, namely, the waterworks of the city of Cleveland.
“It appears that the waste by the necessity of discharging and throwing away five-sixths of this heated water causes a direct money loss to the plaintiff which has been ascertained to a reasonable certainty by the testimony of experts in the employ of the city and otherwise.”

From the evidence we are also able to determine with reasonable certainty the quantity of sewage which the defendant has established its prescriptive right to carry into the run.

As to the quantum of pollution caused by others, including slaughter houses, oil refineries, rolling mills, foundries and other manufacturing establishments, some twenty-one in number and about one hundred private water closets, all located near Kingsbury run and emptying into it, the proof is not so definite, but we are able to estimate it with some degree of certainty.

Deducting from plaintiff's total damage occasioned by the necessity of throwing away five-sixths of its heated water, on account of the pollution of the water in the run, that portion of said damage resulting from prescriptive pollution, if it may be so called, and the pollution occasioned by others than the city, there remains the damage specially and directly caused by the city and for which' it is liable. This damage we have computed and averaged by the month, beginning the computation April SO, 1898.

Defendant claims that damages should be computed only to the filing of the petition, July 6, 1900. Plaintiff contends that it is entitled to damages down to the day of trial in November, 1903.

It appears that in law cases for damages only, defendant is right, but it would seem to be otherwise where the damages, are to be ascertained by a court of equity. As we have heretofore stated, one of the reasons why equity retains control of _ suits involving damages by trespass and nuisance, though preventive relief may be denied, is for the purpose of avoiding a multiplicity of suits and computation of damages to the trial day is within the spirit of that purpose. Webb’s Pollock, Torts 519; Beir v. Cooke, 37 Hun (N. Y.) 38; Lynch v. Railway Co. 129 N. Y. 274 [29 N. E. Rep. 315; 15 L. R. A. 287],

In this state interest begins to run on judgments from the first day of the term at which they are rendered, and for that reason in this case we compute the damages to the first day of this term, October 19, 1903, instead of to the day of .trial, and for the period of sixty-six months intervening between April 20, 1898, and the first day of this term of court we find that by the acts of defendant the plaintiff has been damaged in the manner claimed by it in the sum of $6,600.

An injunction, however, is refused. The granting of an injunction is always largely in the discretion of the court and the results to the public at large, now using the sewers we are asked to abate,’must be considered. It appears from the proof that many private houses and manufacturing and mercantile establishments in the city of Cleveland are now connected with these sewers, which have been built at large expense. The health, as well as comfort and convenience, of thousands of citizens depends upon maintaining an'outlet for the sewers and no other outlet is practical or can be obtained under the present system of sewage disposal in use in The city.

Again, an injunction should restrain the city from emptying only part of said sewage into Kingsbury run, because the city has shown its prescriptive right to flow a certain amount of sewage thereinto, and such a partial abatement would be impracticable and difficult to enforce.'

Speaking for myself alone, I think the city should be compelled to install at the mouths of all sewers running into Kingsbury run and other' runs and thence into the Cuyahoga river, modern and scientific sanitary plants for the interception and reduction of all polluting matter effluent from such sewer.s, but the court is unwilling to put the city to such expense at this time.

Decree for plaintiff.


author: GIFFEN, J.

text:
    COSTS — CONSTITUTIONAL LAW — EMINENT DOMAIN.
    [Hamilton (1st) Circuit Court.]
    Giffen,* Swing and Jelke, JJ.
    Cincinnati, M. & L. Traction Co. v. Philomena Felix.
    1. “Costs” Subject of Legislative Creation, Regulation and Control.
    Costs a-ccruing in the litigation of an action are unknown to the common law, but are a subject of legislative creation only, and when so created the right to their allowance may be regulated, changed or entirely taken away, and in the. exercise of such power bhe legislature may provide that in all cases of trial ■by jury the parties thereto shall pay, as a part of the costs; the fees of the jurors.
    2. Corporations can only Exercise Right of.Eminent Domain Subject to Burdens Imposed by Statute.
    Corporations do not possess, as a matter of right, the power to exercise the power of eminent domain but can only do so subject to the burdens imposed by the statute under which they proceed.
    3. Requiring Corporation to pay Jury Fees in. Appropriation Cases no Unlawful' Discrimination — Section 6451 Rev. Stat. Constitutional.
    No unlawful discrimination is created between a corporation plaintiff in an •appropriation proceeding under Sec. 6414 Rev. Stat. et seq. and the parties to other actions, by the provision of Sec. 6451 Rev. Stat. which provides that the fees and mileage of the jurors summoned and attending the -hearing in such a proceeding shall be allowed and taxed as costs and “shall be adjudged against and paid 'by the corporation.” commencing tlie proceeding, and which does not exempt from its operation any corporation similarly situated and proceeding thereunder, although in ordinary actions such fees are paid by the county treasurer or warrant of the comity auditor. Said section is a law of a general . nature having uniform operation throughout the state, within the meaning of Sec. 26, Art. 2 of the constitution, and is therefore valid.
    Gordon, Granger & DeWitt and Charles W. Baker, for plaintiff.
    John Nichols, and Ampt, Ireton & Collins, for defendant.
    John Nichols, for defendant:
    Section 6451 Rev. Stat. imposes no penalty or burden upon one suitor or class of suitors from which others similarly situated are exempt. Mc-Gill v. State, 34 Ohio St. 228, 237; Snell v. Railway Co. 60 Ohio St. 256 [54 N. E. Rep. 270],
   GIFFEN, J.

It is claimed that the court erred in taxing the jury fees as a part of the costs to be paid by the plaintiff in the proceedings to appropriate private property, and assess the compensation therefor, for the reason that Sec. 6451 Rev. Stat. is unconstitutional and void.

In such proceedings under Chap. 8, Title 2 Rev. Stat., ■the right of trial by jury is provided for and unimpaired, except by the requirement that the jury fees shall be paid as a part of the costs by the corporation seeking to appropriate the property.

“Costs are unknown to the common law. They are given only by statute, and may be changed, or entirely taken away, at the will of the ••legislature.” Farrier v. Cairns, 5 Ohio 45, 47.

It would therefore be within the power of the legislature to provide that the parties in all jury trials should pay, as a part of the costs, the fees allowed by statute to the jury; and the only question then in this case is whether there is an unlawful discrimination against corporations, the jury fees in ordinary trials being paid by the county treasurer on the warrant of the county auditor ?

. Individuals may not invoke the power of eminent domain, and all private corporations that may resort to it are subject to the provisions of Sec. 6451 Rev. Stat., which imposes no burden upon one suitor or class of suitors from which others similarly situated are exempt. In the case of Snell v. Street Ry. Co. 60 Ohio St. 256 [54 N. E. Rep. 270], Judge Williams, delivering the opinion of the court, says, at page 267:

“It has never been regarded as essential to the validity of remedial procedure that it should be applicable in all its provisions to all persons or parties alike. Different situations and conditions often render appropriate and necessary different provisions, the necessity or propriety of which rests largely in the legislative discretion.”

The case of Silberman v. Hay, 59 Ohio St. 582 [53 N. E. Rep. 258; 44 L. R. A. 264], cited by counsel for the plaintiff in error is not in point, as the statute under consideration in that case was held unconstitutional, not because it required a deposit of a certain sum of money for the benefit of the jury fund, but because it applied to Cuyahoga county, alone, and being a law of a general nature, did not have uniform operation throughout the state.

In view of the extraordinary power of corporations to appropriate private property the legislature deemed it wise,, in the event that the parties could not agree upon the compensation, and a jury was impaneled to ascertain the amount, that the cost thereof should be taxed against the corporation appropriating the land.

We think therefore that this section of the statutes is not in conflict with Sec. 26, Art, 2 of the constitution, and the judgment will he affirmed.


author: COOK, J.

text:
    INSURANCE — EXCEPTIONS IN ACCIDENT POLICIES.
    [Mahoning (7th) Circuit Court,
    October Term, 1903.]
    Laubie, Cook and Burrows, JJ.
    North American Acc. Ins. Co. v. Ida Paine Gulick.
    Construction of Proviso in Accident Policy.
    In an action upon an accident insurance policy, containing a proviso “that one-twentieth of the amount named in the policy should be the maximum limit of the company’s liability should death result directly or indirectly from unnecessary or negligent exposure to obvious danger:” Held, that in order to reduce the recovery to the amount set forth in the proviso, the company ■must show by a preponderance of the evidence that the insured was intentionally negligent in consciously exposing himself to a known danger.
    Error to court of common pleas of Mahoning county.
    Arrel, McVey and Taylor, for plaintiff.
    Thomas N. Sanderson, for defendant.
   COOK, J.

Ida Paine Gulick, defendant in error, was the wife of Horatio F. Gulick, and beneficiary in an accident policy upon his life issued by defendant in error. He was killed at Woods Run, a station on the Pittsburgh, Fort Wayne & Chicago Railway, just west of the city of Allegheny in the state of Pennsylvania. The questions made arise upon a construction to be given to a provision of the policy. The policy is for $3,000, and the proviso is as follows:

“The sum of one-twentieth of the amount named in clause ‘D’ in the case of accidental death; or one-fifth of the amount named in clause ‘A’ per week for a period not exceeding five consecutive weeks, in event of fionfatal injuries causing total disability, or loss of hands, feet or eyes, shall be the maximum limit of the company’s liability under the policy; should the accident, injury, disability, death, or loss of limb, or sight, result wholly or partly, directly or indirectly from voluntary over-exertion; from lifting; from unnecessary or negligent exposure to obvious danger; from intoxication or while intoxicated; from or while violating law-, or from altercation, feud or quarrel.”

The action below was for the full amount of the policy, $3,000. The company tendered one-twentieth of the amount, and claimed that it was not liable for any greater sum. The particular clause of the proviso upon which the company relies in this case, is that which says that payment shall be reduced when accident results “from unnecessary or negligent exposure to obvious danger.” At Woods Run station there were four tracks; two for passenger trains and two for freight trains. There were platforms running parallel with the tracks between tracks one and two, and three and four about one hundred feet long upon which passengers stood to board the trains. There was also a platform or passageway made of plank five feet wide, running at right angles with the tracks from the station house across tracks one, two and three, and intersecting the platforms between tracks one and two, and tracks three and four. Gulick went to the station the night he was killed for the purpose of taking passage on the west bound accommodation, which ran on track number four, that passed the eastern express at this point. The express did not stop at this station. The only witness that knew anything about the accident, or could'throw any light whatever upon the manner in which it occurred, was J. R. Yeagley. He testified that when he came to the station house Gulick was standing on the station platform immediate^' in front of the five-foot platform that went across the tracks; and that he,- Yeagley, went into the station house, and that when he came out he noticed Gulick standing on the- platform between tracks one and two about eighteen feet west cf the five-foot platform that went across the tracks. He says that the headlight of the express train going -east on track number two 'was then plainly visible, and that he spoke to Gulick and said to him “be careful or you will get injured,” and that Gulick replied that he knew his business, or words to that effect. Yeagley’s attention-was then diverted by purchasing a newspaper, and while doing so the eastern' express went by at a rapid rate of speed, and when it got past the station Gulick’s body was found, lying up against the western accommodation train, which was then standing on track number four. Under circumstances of this character, should the beneficiary recover the full .amount named in the policy? It is claimed on behalf of plaintiff in error, that from the testimony of Yeagley, no recovery could be had against the railroad company however negligent it might have been, as the headlight of the eastern express which struck Gulick was in plain view, and therefore he-was clearly guilty of contributory negligence; and that the same rule should be applied as though the suit had been against the railroad company by his administrator, where he would be required to use ordinary care to protect himself against injury.

What is the construction .to be placed upon the words, “from unnecessary or negligent exposure to obvious danger?” It will be observed that the danger to which the assured must not subject himself is an obvious danger; a danger that is “evident,” “manifest,” “understood;” such are the synonyms of “obvious” as given by Webster and Bouvier. It is not a danger that the party might have known of, by the exercise of ordinary care, that the assured must not unnecessarily or negligently expose himself to, but a danger that he is conscious of, and knows to exist; that is, he must not wantonly and wilfully Hake the risk of a known danger. The guaranty against injuries or death by the insurance company by its policy must mean more than indemnity against accidents other than those occasioned by the want of ordinary care upon the part of the assured, or there would be no use for such policies. The very object and purpose of the policy, as its name imports, is to indemnify against loss arising by accident. It is to protect against inadvertence and mistake on the part of the assured that usually prompts the securing of an accident policy.

In the case of United States Mut. Acc. Assn. v. Hubbell, 56 Ohio St. 516 [47 N. E. Rep. 544], the words in the proviso were “voluntary exposure to unnecessary danger,” 'and the court held:

“The term 'voluntary exposure to unnecessary danger,’ in an acci'dent policy, does not embrace every exposure of the assured that might have been avoided by the exercise of due care on his part. It relates to dangers of a substantial character of which the assured at the time had knowledge, and to which he purposely and consciously exposed himself, intending at the time to assume all the risks.”

On page 526, Spear, J., in the opinion says :

“It is clearly not enough, in such case, to show that the deceased was negligent. .Negligence, in its usual legal signification, has no place in measuring the liability of a company under an ordinary accident insurance policy, for its presence would overturn the primal theory of the contract. Accidents are the result very largely of the failure to observe due care, and yet the contract is intended as a remuneration in case of accident, and it is to procure the obligation of the company to pay this remuneration, that the assured pays the premium.”

In the case of Keene v. Mutual Acc. Assn. 161 Mass. 149, 151 [36 N. E. Rep. 891], the words in the exception were the same, “voluntary exposure to unnecessary danger,” and the court said:

“A voluntary exposure to unnecessary danger implies a conscious intentional exposure; something which one is consciously willing to take the risk of. By taking a policy of insurance against accidents, one naturally understands that he is to be indemnified against accidents resulting in whole or in part from his own inadvertence.”

In the case of Irwin v. Accident & Sick Benefit Assn. 127 Mich. 630 [86 N. W. Rep. 1036], the court held:

“A condition in an accident insurance policy against liability for injuries caused ‘by voluntary or unnecessary exposure to danger’ is limited to cases of intentional exposure to recognized danger, and does not include acts of mere thoughtlessness on the part of the assured.”

In the opinion the judge says:

“The word ‘exposure’ used in this connection, implies an intentional act.”

To the same effect is the holding in Travelers Ins. Co. v. Randolph, 78 Fed. Rep. 754 [24 C. C. A. 305; 47 U. S. App. 260],

The provisos considered in all these cases are somewhat different, and also differ from the expression in the policy under consideration, but they are not radically so, and the rule established generally is, that the danger must be a known one, and the assured must consciously and purposely subject himself to the risk; that mere inadvertence or mistake on his part is not sufficient to bar his right to recovery.

Under this rule let it be conceded that Gulick saw the headlight of the approaching eastern express, and. also that he attempted to go over track number two to reach track number four to take his train, and was struck by the express and killed; yet we do not think that fact necessarily bars the right of the beneficiary to recover the full amount of the policy. Two trains were approaching each other — his train and the express; naturally there would be some confusion; necessarily he must get to the platform between tracks numbers three and four or be left. By inadvertence and mistake he miscalculated the distance the express was away, and was caught by the train and killed; yet we think such an act does not bring the case within the restrictive clause of the proviso in the policy.

' Furthermore, this case was tried by the court, a jury being waived, and the court found that the facts would not justify the court in finding that the death of the assured arose/'from unnecessary or negligent exposure to obvious danger,” and rendered a judgment for $3,000, the full amount of the policy. We, therefore, could not disturb the finding and judgment of the court unless it was clearly against the evidence. If honest, fair-minded, careful persons might reasonably differ as to the correctness of the finding, we must let it stand. Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276],

This proviso was an exception in the policy and the burden was upon the insurance company to show that the assured violated the restrictive clause of the proviso. Keene v. Mutual Acc. Assn. supra.

Did the company so show? What evidence is there to establish the fact that Gulick negligently attempted to pass over track number two in front of the eastern express? None whatever. That he was struck by the locomotive or train there is little doubt How struck? Did he slip and fall on the platform or track? We cannot tell. Did he have a fit or was he otherwise suddenly stricken down? We do not know. Upon all of these questions we are left in-the dark. Neither the engineer nor .fireman saw him, so far as is shown by this record. In the absence of affirmative proof of the negligence of the insured we cannot assume that he exposed himself unnecessarily or negligently to an obvious danger.

Judgment of court below is affirmed.


author: HULL, J.

text:
    NEGLIGENCE — JURY—EVIDENCE—VERDICT.
    [Lucas (6th) Circuit Court,
    October 31, 1903.]
    Parker, Hull and Haynes, JJ.
    Toledo Railway & Light Co. v. Elizabeth J. Ward, Admx.
    1. Within Discretion of Court to Substitute Member of Regular Panel for Juryman Irregularly Called, When.
    A bystander was called by the clerk at the direction of the court to fill a jury panel, at a time when the regular jury were in the consideration of a case. After he had been examined, but before being sworn, the regular jury came into the room, and at the suggestion of counsel for plaintiff the bystander was asked to step aside, and one of the regular jury was called in his place: Held, that _ this could not be regarded as in effect a granting to the plaintiff of an additional challenge, but was within the discretion of the court, especially where the place of one called in an irregular way was filled by a member of the regularly impaneled jury.
    2. Evidence of Custom of Slacking Speed of Electric Cars at Crossings Admissible, When.
    Evidence of a custom of slackening the speed of electric cars in approaching a particular street crossing is admissible in a trial involving' a collision at that crossing, as bearing upon the question of contributory negligence on the part of the one injured.
    3. Rules of Street Railway Company Competent Evidence, When.
    And, likewise, where the one injured is a fire captain, a rule of the street railway company, requiring that the right of way be given to an engine or truck of the fire department, is admissible in evidence, as is also a rule requiring all cars to slacken their speed at prominent crossings.
    4. Cross-examination to Show Feelings of Witness Toward Suitors Competent.
    Cross-examination of a witness tending to show his feelings toward the parties to the suit is proper as reflecting upon his credibility.
    5. Fire Department not Subject to Speed Ordinance.
    A fire department is not subject to an ordinance prohibiting driving or riding upon the streets at a rate of more than six miles an hour.
    6. Not Prejudicial in Charge to Jury to use “Bereaved" in Sense of “Deprived."
    It is not prejudicial in a charge to the jury, relating to the damages which may be recovered on account of the wrongful death of a husband or father, to use the word “bereaved” in the sense of “deprived.”
    7. Verdict of $3,000 not Excessive, When — Question of Contributory Negligence for Jury, When.
    An electric car traveling at the rate of twenty-five miles an hour collided, at a street crossing at 1 A. M., with a ladder truck, which was being driven at the rate of eight miles an hour. The captain of the truck, fifty-two years of age and earning $900 a year, was killed, and a jury returned a verdict of $3,000 in favor of his estate. He left a widow and grown-up children: Held, that in the absence of evidence the law will presume that the decedent supported his wife; that the question of his contributory negligence was a proper one for the jury; and that the verdict was not excessive.
    ERROR to the court of common pleas of Lucas county.
    Smith & Baker, for plaintiff in error.
    D. H. Commager, Harry S. Commager and Harvey Scribiier, for defendant in error.
   HULL, J.

This action was brought by defendant in error, who was plaintiff below, as administratrix, to recover for the death of John B. Ward, who was her husband. A verdict was returned in her favor for $3,000. Judgment was entered upon that, and this proceeding in error was brought to reverse that judgment. Ward was a captain in the fire .department of the city of Toledo, being a captain of a hook and ladder truck with three men under him — two truckmen and a driver. About one o’clock in the morning of December 24, 1901, an alarm of fire was sounded in the western part of the city at the corner of Nebraska avenue and Hawley street; the truck of which Ward was captain responded and left No. 7 engine house at a few minutes before one o’clock, and some few squares from Dorr street reached Collingwood avenue and turned into it, going toward the fire. At the intersection of Collingwood avenue and Dorr street the truck was struck by a street car of thé defendant company, running westward on Dorr street. The truck was partially demolished and Captain Ward so injured that he died in a few hours, and this action was brought against the railway company to recover damages for his death, on the ground that it was caused by the negligence of tire employes of the railway company who were running the car.

The case was tried to a court and jury and the first error complained of was in the selection of the jury. When the case was called for trial, the regular jury, or the most of them, were at that time engaged in the consideration of another case. The court began the impaneling of the jury, and in order to fill the panel directed the clerk, there not being enough regular jurors present, to call one M. Loenshal into the box, he being a bystander, and when he took his seat in the jury box he was examined by counsel on both sides and was interrogated as to his relations with the railway company and its employes and on other subjects, and the record recites that after this examination no challenge to him for cause was made, but that shortly after the examination the regular jurors who had been deliberating upon another case, agreed upon a verdict and came into the court room and were discharged from that case. Thereupon Judge Commager, who was one of counsel for the plaintiff below, made this statement to the court:

“I will ask Your Honor to call the regular jurors instead of talesmen, if we have a regular jury here.”

Thereupon the court directed Mr. Loenshal, who had been thus called into the box, to step aside, and to this action of the court the defendant railway company objected and excepted. Then the court directed the clerk to call the regular jurors, and Andrew Baker was called into the jrtry box, 'presumably upon a call of the roll, as that would be the regular and proper way to call jurors. Then the plaintiff peremptorily challenged a juror, to which the defendant railway company objected and excepted, claiming that the court had no right after the juror, Loenshal, had been examined and no challenge for cause had been made, to direct him to step out of the jury box on the ground that the regular jury had come into the room, counsel for the defendant urging that he had.become to all intents and purposes a regular juror and that they were entitled to have him remain in the jury box; that the fact that the regular jury had come into the room did not affect the situation, and claimed that it was in fact giving to the plaintiff an additional peremptory challenge upon no ground stated in the statute. The record discloses that no challenge for cause was made to Loenshal, but after the regular jurors came into 'the cow-t room the suggestion of Judge Commager was made to the court, as stated, and the court directed the clerk to call the regular jury.

In our judgment, there was no error in this proceeding of the court. Mr. Loenshal had not been sworn; he was not challenged “for cause” it is true, but he had been subjected to an examination by counsel for plaintiff, and in the course of that examination it is apparent that counsel concluded he would be an undesirable juror to sit in the case and that they did not desire to have him sit, and therefore suggested to the court that as regular jurors were present, one of them be called.- There are three ways of challenging a juror under our statute (Secs. 5176 Rev. Stat. et .seq.) : He may be challenged peremptorily, he may be challenged for cause, and there is a challenge to the favor, which is a kind of a challenge for cause, under Sec. 5177 Rev. Stat., which provides:

“Any petit juror may be challenged also on suspicion of prejudice against or partiality for either party, or for want of a competent knowledge of the English language, or for any other cause that may render him at the time an unsuitable juror. The validity of such challenge shall be •determined by the court, * * *. And each party may peremptorily challenge four jurors.”

It may have occurred to the court, we do not know, after hearing this examination of the juror and learning what was elicited by that examination, that he was an unsuitable juror to sit in the case, and upon reflection the court may have concluded that in its discretion it would excuse him;. that would be within the discretion of the court.

It may be remarked in passing that this juror was not.called into the box in the regular way, as we read the statute. Where talesmen are called-the statute makes it the duty of the sheriff to call them. If either party requests a special venire, the court may order it and give the names to the clerk; but the statute provides, Sec. 5173 Rev. Stat.:

“But no person known to be in or about the courthouse shall be selected without the consent of both parties.”

Mr. Loenshal, at the time he was selected, was in the court room. There is no provision -of the statute, to our knowledge, authorizing the court to direct the clerk to call a man in this manner into the jury box; though it may be done, of course, by consent; but unless a special venire is asked for, the statute makes it the duty of the sheriff or his deputy (the court constable may also act for him) to fill the panel. So that there was an irregularity in the calling of this juror into the box. We do not speak of this in the way of criticism, there being no objection made upon that ground, but we speak of it as a fact in the case, it being claimed that the court erred in directing Loenshal to step aside. In the first place he was not regularly in the jury box, and that may have occurred to the court. But, beyond all that, we are of. the opinion and hold that the court had a perfect right to direct a bystander or talesman who had been called into the box, to step aside before being sworn, if regular jurors came into the room having been' detained in the jury room until that time. It is the business of the regular jurors to sit'in the trial of cases; they are summoned for that purpose and their names having been drawn in the regular way out of the jury box, if they are present, parties and counsel have the right to have their cases tried to the regular jurors who have been drawn and summoned. Talesmen and bystanders are called and special venires issued to fill vacancies which are occasioned by the absence or challenge of the regular jurors. It is not the policy of the. law or the theory of these statutes that talesmen and bystanders shall sit on the jury when regular jurors aré sitting idle in the court room. They are paid their per diem for performing this service, and their pay goes on usually whether they are actually sitting in a case or not, and it is in the interest of economy and good business policy for the court of common pleas to see that they are kept busy in the jury box and not to call talesmen or bystanders when not needed. This man had not been sworn; he was not yet a juror, and whether he would sit or not was still within the discretion of the court.

A case in 63 Mich, was cited by counsel for piáintiff in error, but in that case a regular juror was excused by the court without any cause or reason, and the supreme court held that the judge had no right arbitrarily to direct a regular juror to step out of the box. That is not this case. •

The truck was going at a rate of seven and a half to eight miles an hour along Collingwood avenue, an asphalt paved street; the car was going, according to the undisputed evidence in the case, from twenty-five to thirty miles an hour. It is claimed that Ward was guilty of contributory negligence in the manner in which this crossing was approached; that the horses were going at an excessive rate of speed-and in violation of the ordinances of the city. It is claimed that the motorman of the car was ringing the bell so that it might have been heard if ordinary care had been exercised by Ward and the others upon.the truck. One of the men on the truck, the driver, who was driving the horses, was not called as a witness, and a witness (Beck) was called and testified as to this driver’s condition — to explain why he was not called as a witness. Beck’s testimony upon that question was objected to, but was admitted and exception taken. He was permitted to state that he talked with the driver and the driver could not remember what had occurred; that he was injured about the head and that the driver told him he could not remember. Without discussing this in detail, we are of the opinion that there was no error in admitting that. The testimony did not relate to any' facts in the case, but it was proper to explain to the jury why this witness was not called, and the explanation sought to be given was that, on account of his injuries, he had no recollection of the accident. Beck gave his opinion from seeing him and talking with him. That want of recollection may have been feigned by the driver, but it was a question to go to the jury. The driver might have been subpoenaed by the defendant and examined before the jury.. In our judgment there was no error in admitting this testimony.

It is claimed that there- was error in admitting the evidence of a custom of slacking the cars at this crossing. There was evidence offered and admitted tending to show that it was the custom in approaching this crossing for the cars to slacken their speed, and several witnesses testified to that and the evidence showed that'Ward had often crossed this crossing. He had been in the fire department for twenty-five years, and the presumption is that he had some knowledge of this custom, if it existed. Upon the question of contributory negligence and what he had a right t© take into consideration at the time, we think it was proper to admit the evidence of such a custom and it was for the jury to say whether that was a proper thing for him to consider and whether he probably knew of it.

Rules of the company were admitted • over the objection and exception by defendant. A rule required the street cars to give the fire department the right of way at all crossings, and, if necessary, to stop and allow the truck or engine of the fire department to go by. We think that was properly admitted. The men on the truck had a right to take that into consideration as they approached this railroad crossing, and the violation of the rule would be evidence'of negligence.

Another rule required the cars to slacken their speed at all prominent crossings. This was offered and admitted over the objection and exception, and we think properly admitted.

On cross-examination of an employe of the railroad company, called by defendant, was asked by counsel for plaintiff if he had not been interviewed by them, and refused to answer, stating that it was the rule to say nothing, and he was asked as to .statements of his after the accident, This was objected to and exception taken. We think it was proper, on cross-examination, to show the feeling of the witness towards the company and his feeling towards Ward as reflecting upon his credibility as a witness.

The defense offered to put in evidence the ordinances of the city prohibiting riding or driving on the streets of the city faster tiran six miles an hour. This was excluded by the court, and that is claimed to have been error on the ground that the violation of a city ordinance is some evidence of negligence, and that it should have gone to the jury. The fire department is not subject to such an ordinance. It is the duty of the men in the fire department to get to a fir'e as quickly as possible after an alarm of fire is sounded; property and often human life are at stake, and an ordinance prohibiting firemen from going to a fire faster than six miles an hour would be unreasonable and would not be enforced by a court. It has been held by the court of appeals of New York and by the supreme court of Kansas that such ordinances do not apply to the fire department. This question is discussed in Farley v. New York (Mayor), 1 Am. Neg. Rep. 341 [152 N. Y. 222; 46 N. E. Rep. 506; 57 Am. St. Rep. 511]. I read from the syllabus:

“Section 1932 of the consolidation act, regulating the speed of horses in the streets, has no application to fire engines, on the way to fires.”

And this is discussed in the opinion along the lines that I have suggested. And again in Kansas City v. McDonald, 6 Am. Neg. Rep. 67 [60 Kan. 481; 57 Pac. Rep. 123 ; 45 L. R. A. 429], the supreme cou,rt of Kansas, in the first paragraph of the syllabus, say:

“An ordinance making it a misdemeanor for any person intentionally to ride or drive any horse, mule, or other beast faster than an ordinary traveling gait in any of the streets of the 6ity is unreasonable when sought to be applied to. the fire department in driving to a fire, and for that reason will not be enforced.’’

There was no error in the court’s refusing to admit the ordinance. The charge of the court is complained of. After an examination of the charge as a whole, we are of the opinion that there was no error in the instructions given to the jury by the court prejudicial to the defendant below ; that the instructions upon the question of concurrent negligence and subsequent negligence were fairly within the authorities. It is complained that the court used this language:

“It is purely a question of how much money will fairly compensate this wife and these children for what they have actually lost by reason of being deprived, or bereaved, if you'please, of the support and maintenance which this husband would have rendered them.”

Objection is made to the word “bereaved,” on the ground that bereavement is not to be considered; but it is evident that the court used the word only with the meaning of “deprived” of the services, and the jury could not have been misled. There is no error in the rule for the measure of damages as given by the court, and the verdict of $3,000 is not excessive. It is said there was no evidence offered to show that Captain Ward supported his wife.- That would be the presumption. He was a man fifty-two years of- age and had been in the fire department twenty-five years. He was tall and weighed nearly 200 pounds; earning $900 a year. - He had a wife and three grown children who, although of age, are to be considered in some respects in the matter of damages, and we think $3,000 was not an excessive verdict'.

Nor do we think that the verdict was against the weight of the evidence. The proof is that the car was going twenty-five to thirty miles an hour. This is not denied by any witness. There were three or four men in the car, employes of the railway company, and none of them denied that the car was going at that rate of speed, and none, except the motorman in charge of the car, seemed to know how fast the car was going. Whether the bell was rung or the gong sounded is a disputed question. The truck was g'oing seven or eight miles an hour. Whether Ward was guilty of contributory negligence, or whether the company was guilty of negligence, was a fair question to submit to the jury, and with their finding we have no complaint to make.

The judgment will therefore be affirmed.


text:
    NEGLIGENCE — CHARGE TO JURY.
    [Cuyahoga (8th) Circuit Court,
    November 23, 1903.]
    Hale, Marvin and Winch, JJ.
    Cleveland v. Michael Wolf.
    Charge Improper Ignoring Assumed Risk Where no Special or Peremptory Orders Given by Master.
    A charge to the jury in an action by a servant against the master to recover for damages resulting from the negligence of the latter, is improper, which permits the jury'to conclude that the servant would not be guilty of negligence by reason of obeying general orders of the master unless the danger of so doing was so obvious that a man of ordinary prudence would not have exposed himself to it, and which wholly ignores the question of assumed risk, it appearing from the evidence that plaintiff was engaged at the time in the performance of his usual and ordinary duties which he had been engaged in for several years for the master, and it also further appearing that no special or peremptory orders or instructions were given to the servant on the particular occasion. In such case, the court should define the kind of orders or instructions which would relieve the servant from the thought, care and scrutiny which he otherwise would be bound to exercise in the discharge of an ordinary duty which had in it certain elements of danger which''he assumed while so engaged.
    ERROR to court of common pleas.
    Newton D. Baker, for plaintiff.
    Hermann Preusser, for defendant.
   WINCH, J.

On November 15, 1899, the city of Cleveland was engaged in laying water pipes on Kirtland street in said city, which pipes were lowered into a trench dug for that purpose by means of a derrick placed over said trench. Michael Wolf was, on that day, in the employ of said city, his duty being to assist in putting the pipes in proper position after they were lowered into said trench, and to make the joints water tight. While he was at the bottom of said trench engaged in the performance of his duties, he was injured by a portion of the west wall of said trench falling in upon him.

He brought suit against the city, alleging the weak and unsafe condition of said west wall at the particular place where he was injured where stood a telegraph pole, which condition he says the city knew, or by the exercise of ordinary care ought to have known, but which was to him unknown; the failure of the city to brace or timber said trench so as to prevent said wall from caving in; the failure of the city to notify him of the danger to which he was exposing himself while performing his duty. Another allegation of the petition I will give ín its exact language:

“The defendant’s foreman then in charge of the work, and whose orders and commands plaintiff was bound to obey, peremptorily ordered .plaintiff to descend into said ■ trench; * * * in obedience to, defendant’s order, by its agents and servants whom he was bound to obey, and not knowing the weak and dangerous condition of said trench wall at or near said pole, and having neither time nor opportunity to examine said wall before going into the trench, he descended into said trench at or near the socket end of the pipe, to which the pipe lowered as aforesaid was to be joined, and where plaintiff was to perform his duty; the trench near said socket was apparently in safe condition, etc.”

The city answered, denying all averments of negligence on its part, and alleging contributory negligence on the part of Wolf.

Trial upon the issues resulted in a verdict and judgment for the plaintiff.

To reverse this judgment, petition in error has been filed in this court, alleging, among other things, that the charge of the trial judge was erroneous. Attention is called to the following part of the charge:

“It was the duty of the plaintiff in this action to exercise ordinary and reasonable care for his own safety, and if he failed to do so he would be negligent, and if such negligence on his part directly contributed to cause the injuries complained of, he cannot recover in this action. But I say to you, that if you find from the testimony that the plaintiff was ordered by one of the defendant’s foremen to go into the trench at the time he was injured, he- would not be negligent by reason of obeying such order, unless the danger of so doing was so obvious that a man of ordinary prudence would not have exposed himself to it; and I further say to you, that unless the plaintiff knew, or by the exercise of ordinary care ought to have known, that by reason of the character of the soil_ where the trench was dug, or by reason of the proximity of the telegraph pole to the ditch, there was danger of earth falling upon persons who might be in said trench, he is not chargeable with negligence in going into said trench at the time he went therein.”

This part of the charge was warranted by the allegations of the petition above quoted (Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998]), but it was not applicable under the evidence produced at the trial, and was, therefore, misleading.

There was no evidence produced showing that Wolf was peremptorily ordered into the trench at the time he was hurt. He himself says, upon cross-examination, that he always knew his duty and went down into the trench without being told, and -that the pipe was put in the trench that day in the same way and in the usual manner, of putting pipes in trenches. AVolf had worked for the city twelve or thirteen years, the. first five or six years in digging water pipe trenches, and the remainder of the time in putting water pipes' in position at the bottom of the trench and connecting them together- — the very things he started to do when he was injured. AVhile he says that one Henry Benedig, assistant foreman on the job, told him to go down into the trench, it appears that Benedig preceded AVolf therein, and AVolf descended into the ditch at the proper time, in the usual manner, and to perform his usual and ordinary duties. It is apparent that AVolf, at the time he was injured, went into the ditch pursuant to -the general orders all servants may be said to receive from their masters that they do their work at the proper time and place, and not pursuant to any special or peremptory orders given him at the time o.r any orders different from the orders he had received many times a da)*- for many years. ,

The reason the charge is misleading is because the trial judge failed to define the kind of order which would relieve AVolf from the thought, care and scrutiny which he was bound to exercise while engaged in his ordinary duties in an occupation which had in it certain elements of danger which he assumed when he engaged in it. It permitted the jury, having found that AVolf had general orders to go into the trench each time a pipe was lowered into it, to conclude that “he would not be negligent by reason of obeying such orders, unless the danger of so doing was so obvious that a man of ordinary prudence would not have exposed himself to it.” Such cannot be the law; it ignores the rule of assumed risk.

The proper rule in cases like this is set forth by the Supreme Court in the recent, case of Northern Ohio Ry. Co. v. Rigby, 69 Ohio St. 184. The latter icase distinguishes Van Duzen Gas & Gasoline Engine Co. v. Schelies, supra.

Judgment reversed.


text:
    MUNICIPAL CORPORATIONS — CONTRACTS.
    [Hamilton (1st) Circuit Court,
    December 18, 1902.]
    Jelke, Giffen and Swing, JJ.
    John Wright, a Taxpayer, v. Kennedy Heights (Vil.) et al.
    Contracts Between Municipal Corporations for Surplus Water not Authorized by Sec 2425 Rev. Stat.
    The provisions of the second clause o>f Sec. 2425 Rev. Stat. that, * * * “any city or village which has waterworks is hereby authorized and empowered to dispose of any surplus water for manufacturing or other purposes,” is to be understood as referring to consumption for private enterprise alone, and the phrase, “or other purpose,” as qualified by the preceding word, “manufacturing.” Moreover, as it is provided by the first clause of the section that for one municipal corporation to supply another with water there must be a contract under terms “mutually agreed upon,” and, consequently, 'mutually enforceable, and such a contract for mere surplus water not being mutually enforceable, it is not authorized by this section.
    D. H. Pottenger, for plaintiff.
    O. W. Bennett, contra.
   JELKE, J.

Can the village of Kennedy Heights, not being contiguous to the city of Cincinnati, make a contract with the city to supply said village with water under Sec. 2425 Rev. Stat. ?

It is admitted that it cannot under the first clause of the section, which provides:

“Any city or village which has established, or hereafter establishes, waterworks, may enter into a contract with any contiguous city or village for the supply of the latter with water, upon such terms as shall be mutually agreed upon by the councils of the respective municipal corporations.”

But it is contended that such contract may be made under the provision of the second clause, which provides:

* * * “and any city or village which has waterworks, is hereby authorized and empowered to dispose of any surplus water, for manufacturing or other purposes, by lease or otherwise, upon such terms as may be agreed upon by the board of trustees of the waterworks, or public works, and approved by the council of such city or village.”

It is to be observed that the first clause provides for a “contract” and for “the supply of water” under terms “mutually agreed upon,” while the second clause provides for the disposition of surplus water only, and that for manufacturing or other purposes. The legislature, in providing what relations may be established between contiguous municipalities, on the subject of water, has seen fit to prescribe, that it shall be by contract mw -*»- ally agreed upon, and, consequently, mutually enforceable, and that such contract must be for the supply of water. Having thus expressed itself upon this subject, this expression must be held to be exclusive. In contrast to this is the second clause, which authorizes the disposition of surplus water only, and that for manufacturing or other purposes. It is said that the sale of water to the municipality of Kennedy Heights is included under the -expression “or other purposes.” But, in interpreting the expression “or other purposes,” reference must be had to the thing mentioned, to wit, “for manufacturing.” If the power to dispose of surplus water were broad enough to cover every known purpose, including the supply of another municipality, there would have been no reason for mentioning “manufacturing.” This expression “for manufacturing or other purposes” is- used to signify consumption by private enterprise in contradistinction to public municipal supply treated of in the first clause.- The legislature was unwilling that the purchasing municipality should enter into any arrangement so uncertain as dependence upon a mere surplus. ■If the purchasing municipality is to expend its funds in laying water mains and piping its streets, it must be for a supply which can be demanded and enforced under a mutual contract.

We are of opinion that the village of Kennedy Heights is not empowered by this second clause to make such contract with the city of Cincinnati.

As the issue of bonds proposed by said village and voted on at the election was expressly for the pulpóse of laying water mains and pipes to receive water under such a contract, such issue must fail if the contract cannot be made.

Decree for plaintiff.