text:
    ERROR — EVIDENCE—NEGLIGENCE—STREET RAILWAYS.
    [Summit (8th) Circuit Court,
    September 30, 1905.]
    Marvin, Winch and Henry, JJ.
    Northern Ohio Traction Co. v. Waite L. Drown.
    1. Traction Company is not Liable fob Injury to one Wrongfully upon its Tracks if Motorman had no Notice of Plaintiff’s Perilous Position thereon, even if by Exercise of Ordinary Care he might have Known.
    In an action against a traction company for its alleged negligence in permitting an electric ear to run down defendant’s horse and conveyance while on the track, there can be no recovery if the plaintiff was guilty of negligence in so being upon the track, unless the motorman had actual notice of such peril to the plaintiff, even if the motorman might, by the exercise of ordinary care have known of plaintiff’s position of peril and might, had he known, have averted the accident.
    [For other cases in point, see 7 Cyc. Dig., “Street Railways,” §§ 455-461. 534-548. — Ed.]
    2. Error in Admission of Testimony is Cured by Request of Counsel that it be Withdrawn and Refusal to Permit1 Same by Prejudiced Party.
    An error in the admission, over objection, of an answer is cured by a request of counsel for the party in whose favor such answer was made that it be taken from the jury, where it appears that the court left it with the jury solely because the adverse party insisted that it was then too late for its withdrawal.
    [For other cases in point, see 4 Cyc. Dig., "Error,” §§ 1647-1666. — Ed.]
    3. Witness to Testify to Speed of Street Car need not be an Expert!
    In order to testify as to the rate of speed at which a street car was moving, it is unnecessary that a witness qualify as an expert in such matters.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 3245-3250. — Ed.J
    4. Testimony as to Dust Raised by Street Car is Admissible to Show Rate of Speed.
    The admission of testimony as to the rate of speed of a street car, based on the fact that the witness saw a cloud of dust apparently caused by the rapidity of its movement, is not erroneous.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 3152-3166, 3245-?250. — Ed.]
    ERROR to Summit common pleas court.
    Rogers, Rowley & Bradley, for plaintiff in error-.
    A. J. Wilhelm and Geo. M. Anderson, for defendant in error.
   MARVIN, J.

On the twenty-second of October, 1902, at about 6:30 o’clock p. M., one Henry A. Hardy was driving a span of borses harnessed to a top buggy, all being the property of the defendant in error. The team was being •driven to the south on Main street in the city of Akron. A car of the plaintiff in error was being run upon its tracks in the same direction from the north, the team being further south than the car. There -vyas a loaded wagon standing on the west side of Main street with a span of horses attached' to it and the team hitched to a post. In order .to drive to the south on the west side, which would be the righthand sidé in going to the south, and pass this team thus hitched to the post, it would be necessary to turn so far to.the east, or to the left, as that á buggy thus turning, would be in the path of the' car which was coming from the north. Not far from where this team was hitched on the west side of the street the car struck the turnout which was being driven by Hardy and damaged it. The owner of that turnout, Drown, sued the Traction Company and recovered a judgment which it is sought here to have reversed.

Many errors are complained of, and the first to which attention is called is an exception taken by plaintiff in error to a ruling on a question of evidence, found on page 26 of the bill of exceptions, when one Fred Zindel was testifying. Zindel said, being asked as to the speed ■of the car, that it was 'going about as fast as he ever saw a car go. ' It was asked to have that answer excluded. The court overruled the motion to exclude, but, if there was any error in that it was entirely cured, as shown by page 103 of the bill of exceptions, when Judge Anderson, who was trying this case for the plaintiff below, stated to the court that he had become somewhat doubtful as to whether he had a right to have that answer given by Zindel on page 26 remain, and he asked to have it taken from the jury, for some reason, counsel for the defendant below objected to its being taken from the jury, but the court left it with the jury because the defendant below insisted that the witness having once said it and the court having once ruled upon it, it could not now be /taken from the jury.

Fred Hanselman was a witness introduced on the part of plaintiff below, and he was permitted to testify over the objection of the defendant that he thought the car 'was going at about twenty-five miles an hour. It is said that he had not qualified as one able to express an opinion on the subject. He had testified that he resided in Akron, that he often rode on street cars, that he saw them daily in their operation in tbe city, but he had never been engaged in operating street cars.

"We think there was no error in permitting that evidence to go to the jury. It would be very difficult to get at what kind of knowledge one must have as to the rapidity with which horses are driven, or street cars are moved, or automobiles go, if you have got to have always a man who is so much of an expert that he has timed these various things. We think that opinion thus expressed was properly permitted to stand.' the jury to weigh what it was worth. The same question is raised upon the testimony of other witnesses. Zindel saw a cloud of dust which he .says was caused by the rapidity with which the street car was moving, and it is urged that it was error to allow that to go to the jury. We suppose that if one saw a span of horses being driven along the road and a great cloud of dust raised around the feet of those horses, that he might testify to that fact, and let the inference be whatever it might as to whether it was caused because the horses were stumblers or because they were going fast. There was no error in the admission of this evidence.

It was urged that at the close of the evidence introduced on the part of the *plaintiff below the jury should have been directed, as the court was asked to do by motion, to return a verdict for the defendant, because, it is said, that the evidence introduced on behalf of the plaintiff below showed such negligence on the part of the agent of the plaintiff below who had charge of the team as to prevent a recovery. We think there was no error in refusing to take the case from the jury.

It is said when all the evidence was introduced and a verdict had been returned, that the motion for a new trial should have been sustained for the reason that all of the evidence taken together was such as did not sustain the verdict. We do not think that the evidence was such that, as a matter of law, the court could say the judgment is erroneous. We find no error in the overruling of the motion for a new trial on that ground.

The court was asked to give in charge to the jury certain propositions of law. Two of these requests were as follows:

“ (3) If the jury find from the evidence that the plaintiff, through his agent, Hardy, and the defendant, were both negligent, and that the negligence of both directly contributed to cause the injury complained of in plaintiff’s petition, then your verdict should be for the defendant,, and
“(4) If the jury find that the negligence of both plaintiff’s agent and the defendant combined so as to directly cause the injury complained of by plaintiff, then your verdict should be for the defendant.”

Both of these were refused. They were refused upon the idea in the mind of the court that the plaintiff would not be precluded from a recovery though he was negligent, if the defendant might, by the exercise •of ordinary care, have known of the peril in which the plaintiff below was placed and might have prevented the injury. If that is the law. then the court was right in refusing those requests and was right in giving to the jury what is found in the charge on the same subject. The court might well suppose from some of the holdings both of this court and of the Supreme Court, as we think, that he was entirely justified in refusing those requests and giving the charge given. In Lake Shore & M. S. Ry. v. Schade, 8 Circ. Dec. 316 (15 R. 424), it is distinctly stated in an opinion by Judge Caldwell, speaking on behalf of this court, that if the engineer of a railroad train knew, or, by the exercise of ordinary care, might have known of the perilous position-in which Schade, decedent, was placed and could have avoided the injury, although the party killed was negligent in getting into the position which he did, still the railroad company' would be liable; and that case was affirmed without report by the Supreme Court in Railway v. Schade, 57 Ohio St. 650 [50 N. E. Rep. 1133]. This court, believing that it might safely act upon the affirmance of that, held the same proposition in Lake Shore & M. S. Ry. v. Ehlert, 10 Circ. Dec. 443 (19 R. 177), but the Supreme Court reversed that case, Lake Shore & M. S. Ry. v. Ehlert, 63 Ohio St. 320 [58 N. E. Rep. 812]. It seemed to us that the propositions were exactly the same, and we were left, as it seems to us the bar of the state must have been, in great doubt as to what the rule was in Ohio. But later there came the case of the Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571]. In that case it is said by Judge Shauck, in his opinion at page 55—

“By introducing into the instruction given the phrase, ‘if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the deceased in. his perilous position,’ and by other expressions in the charge involving the samp question, the court gave tG the jury an erroneous view of the law. ’ ’

The Erie Ry. v. McCormick, supra, as it will oe remembered, went up from this court and this court was reversed, having sustained that charge. McCormick was not a trespasser, nor was Schade, nor was Ehlert. McCormick was an employe of the railroad company, and yet the court say because that language was used in the charge-there was error. That being the last expression of the Supreme Court on the subject it seems to us that the court has distinctly held that the doctrine announced in Lake Shore & M. S. Ry. v. Schade, supra, is no longer, if it ever was, the law in Ohio, and it will not do to say that one operating a railroad train, or a street car, is to be held liable for an injury resulting from negligence on the part of him who operates the train, or the car, providing the party injured is himself guilty of negligence and that negligence must not be attributed to the railroad company, or the operators of the electric car, because of the fact; that they failed to see him when by the exercise of ordinary care they might have seen him in a perilous position in which the, party injured, had placed himself.

Understanding this to be now the settled law of Ohio, judgment must be reversed for error in refusing to give those two requests, and for giving what is found on page 165 of the record: The language used in the charge might not, as an abstract proposition of law, be objectionable because it is qualified by this language: and if he recklessly, wantonly, etc., ran down the party injured, but as there was no claim, and nothing could be claimed from the evidence, that there was any recklessness or wantonness, if the motorman didn’t know the man was upon the track, then it had no application, and if it had any application at all it was calculated to mislead by giving the jury the idea that there was something of wantonness, which does not appear.

For the errors mentioned judgment will be reversed, and for no •ther.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    GAS AND OIL — COVENANTS.
    [Wood (6th) Circuit Court,
    November 25, 1905.]
    Parker; Haynes and Wildman, JJ.
    Crown Oil Co. v. Albert B. Probert.
    Oil Lease — Right to Abandon and Avoid Liability foe Breach of Covenant.
    A covenant in an oil lease, 'that the lessee shall drill a .well within ninety-days from the execution of the lease and two other wells at intervals of ninety days from the completion of the first well, does not give the lessee the right to abandon the lease and absolve himself from liability for a breach of his covenant to drill the additional wells, where the first well has been drilled, the lease having further stipulated that on failure to drill the first well the lease should be null and void. Tan Etten v. Kelly, 66 Ohio St. 605 and Woodland Oil Go. v. Crawford, 55 Ohio St. 161, distinguished.
    [For other cases in point, see 4 Cyc. Dig., “Gas and Oil,” §§ 89-90, 108 et seq. — Ed.]
    2. Ore, Lease — Stipulated Damages foe Breach of Covenant to Drill Well.
    Where a lessee in an oil lease covenants to drill a well on the premises within ninety days from the execution of the lease and two other wells at intervals of ninety days from the completion of the first, and, in default of drilling said wells or either of them, should forfeit and pay $100 for each well not drilled, this constitutes a covenant to pay stipulated damages for the default and not a penalty.
    3. Damages — Whether Stipulated Damages or Penalty Determined by Circumstances.
    In determining whether a covenant is one for the payment of stipulated damages or a penalty the peculiar circumstances surrounding and connected with the business involved in the agreement, and especially the question whether the damages consequent on a breach could be ascertained with any degree of certainty or ease should be considered.
    £Por other cases in point, see 3 Cyc. Dig., “Damages,” §§ 620-648. — Ed.]
    ERROR to Wood common pleas court.
    E. D. Bloom and A. B. Probert, for plaintiff in error;
    Baldwin & Harrington, for defendant in error ¿
   PARKER, J.

This action was brought in the court of common pleas by'Albert B. Probert against the Crown Oil Company to recover certain sipns of money which he alleges were due to him and which he claims upon a •certain oil lease, between the parties, Probert being the lessor .and the •Crown Oil Company the lessee.

The petition sets forth that this lease was executed on July 23, 1903, and covered a certain eighty acres of land in this county, and contains the averment that the defendant under, and by virtue of, the terms of said lease was required to drill a well upon said premises within ninety days from the execution of said lease, and two additional wells at intervals of ninety days apart from the completion of said first well. It was further stipulated and agreed therein that if the defendant should fail to drill said wells or either of them that the defendant should forfeit and pay to plaintiff the sum of $100 for each well not drilled.

It is also averred that there was a certain stipulation in the lease, •which required the lessee to free the property of a certain lien, and the third cause of action is based upon the alleged default of the defendant below with respect to that stipulation.

Such action was taken in the court below, with respect to that cause of action, that no question is presented to this court upon it. It is averred that this first well was drilled in due time, and the first cause of action is a claim for $100 on account of the default of the defendant •with respect to drilling the second well. The second cause of action is a like claim for a like amount with respect to the alleged default of the defendant in drilling the third well. The petition sets forth a copy of the lease.

A demurrer to the petition was overruled and thereupon the defendant took leave to answer, and the answer is as follows:

“The defendant admits its corporate existence, the execution and delivery of the lease by plaintiff as alleged in the petition, and denies all the other allegations in the petition contained. Defendant says that it entered on said premises and drilled and completed one well within the time specified in the lease for the completion of a well, and that said well did not produce oil or gas in any quantity, and thereupon the defendant abandoned said premises, by pulling the casing and all pipe and fixtures, and removed them from the premises described in said lease, and offered to surrender the lease to said plaintiff. Defendant further says that the amounts sued for in the first two causes of action, by plaintiff, was intended as and for a penalty to insure the fulfillment of the terms of said lease, and was in nowise intended as and for any part of the consideration for said lease. Defendant further says that there was no consideration for the promise mentioned in said causes of action of plaintiff. Wherefore defendant prays that it may go hence and recover its costs herein expended.”

No reply was filed and the case was submitted to the court below upon the motion of the plaintiff for judgment upon the pleadings. It will be observed by the first clause of the answer, that all other allegations of the petition excepting those with respect to the corporate 'capacity of defendant and the execution and delivery'of the lease are denied, and yet by subsequent allegation, all the other material allegations of the petition appear to be admitted, so that the case stands practically upon the petition, with the additional allegations in the answer that after the drilling of the first well the defendant abandoned the premises, and the allegation that these stipulated amounts to be paid upon default of the drilling of the second and third wells were intended as and for a penalty to insure the fulfillment of the terms of the lease. This last allegation of course is not an allegation of a matter of fact.

There is no allegation of any mistake in the terms of the lease; no effort to have the lease reformed, and the intent of the parties is to be determined from the instrument. The lease stipulates, “That for the receipt of one dollar, the receipt of which is hereby acknowledged, and also for the consideration of the covenant hereinafter mentioned, has granted, demised and let unto the said party of the second part,” the oil company, and then follows a description of the premises, and the terms of the lease, which I need not read as a particular clause in controversy here. Then the lease contains this provision:

"In case no well is completed, within ninety days from this date (unavoidable accident and delays excepted) then this lease shall be null and void. ”

That is the only stipulation we find in the lease, the nonperformance of which shall result in gendering the lease null and void. That stipulation was complied with. The well was drilled. Further on in the instrument we find this:

"It.is further agreed that after the completion of the well, second party shall drill two additional wells at intervals of ninety days, and upon a failure to drill said wells or any of them, it shall forfeit and pay to said first party the sum of $100 for each well not drilled. ’ ’

As we understand the argument of plaintiff in error, based upon the answer that this lease was abandoned, it is the contention of counsel that they might abandon the lease and thereby exonerate the lessee, from all liability under the clause, of the requirement that it shall drill or pay upon default of drilling, and counsel seems to base his contention upon the case o*f Van Etten v. Kelly, 66 Ohio St. 605 [64 N. E. Rep. 560], but that lease was materially different from this one at bar. It contained this stipulation:

"In case no well is completed within thirty days from this date, then this grant shall become null and void, unless second party shall pay the first party $30 each and every month in advance while such completion is delayed.”

That stipulation is similar to the one contained in the lease at bar with respect to the first well to be drilled, but there is no such stipulation in this lease with respect to subsequent wells. With respect to this stipulation, it was held in Van Etten v. Kelly, supra, that this did not constitute a promise or obligation to pay rental, and it was held further that the lessee had the option to complete wells or pay rentals to keep the lease alive; and that upon breach of the agreement to complete wells, no action would lie for the recovery of the rentals.

And on page 611, Judge Burket, delivering the opinion of the court, distinguishes it from the case of Woodland Oil Co. v. Crawford, 55 Ohio St. 161 [44 N. E. Rep. 1093; 34 L. R. A. 62], pointing out, that in that case "the lessee agreed to drill certain wells and upon failure, to pay certain rentals, and it was held that the lessor might elect to enforce the contract to drill, or waive that, and enforce the promise to pay rental. There the option was with the lessor. Here, as there is no promise to pay rental, the option is with the lessee, either to drill or pay rental to beep his lease alive, and failing in both, the lease becomes null and void, with an option, however, in the lessor to treat it as void, or to sue for damages for breach of the contract to complete the wells as specified in the lease,” his right being for damages rather than for rental.

The lease in the case at bar is also materially different from that which the court had under consideration in the case of Woodland Oil Co. v. Crawford, supra. Neither of these cases seem to us to be of very great value in considering the question which we have submitted to us here. It is sufficient to say that there is no option in the lessee to regard this lease as null and void and abandon it, and thereby exonerate it from liability under this stipulation to pay in default of drilling the second and third well.

The only question remaining, or the only one that it seems to us requires much consideration, is that suggested as to the effect of this stipulation; — whether it is a stipulation to pay stipulated /damages on .account of this default or a stipulation for a penalty, and to determine that we must loot to the instrument, and we may consider what is universally known respecting the business that is contemplated, the action, operation, and probable results of it. Certain rules upon the subject which we think sufficient for the purpose here are very well and very tersely stated in the 19 Am. & Eng. Enc. Law (2 ed.) 395. I shall read from the text at jjages 398, 399, 401 and 402. It is upon the subject of construction of contracts in case of doubt, and I may say that it is our opinion that there could be no doubt about the intent here to make this stipulated damages, were it not for the phrase ‘! forfeit and pay.” Had the word “forfeit” been omitted, we would have had no doubt about it. The text reads:

“1. General Ride. A frequent statement by the authorities is, that the true solution of'the whole question of liquidated damages as distinguished from'penalty is to be found in the intent of the contracting parties, to arrive at which it is proper to consider the instrument as a whole, the situation of the parties, the subject-matter of the •contract, and all the circumstances surrounding its execution. And in addition to this, it has been held to be permissible to prove the value of the property that a party has contracted to convey or deliver, if the contract, is of such a nature, as well as the consideration moving from the other party therefor, as criteria to aid in ascertaining whether a sum to be paid on default is a penalty or liquidated damages.
“2. Qualifications of the general rule. The doctrine that the intent of the parties to the contract, when ascertained, controls its construction as to the provision for liquidated damages or penalty cannot be accepted without qualification.
“The intent of the parties will not be regarded if illegal in its object, nor will it be effectual if the result would be manifestly to disregard the rule of compensation as damages for the breach of the contract. .Again, if the contract was 'for the payment of money, no stipulation of the parties will be allowed to supersede the measure of damages established by law for the breach of contracts to pay mqney, namely, legal interest.
‘ ‘ 6. Language not conclusive. No rule as to distinguishing between liquidated damages and penalties is better settled than that the language of the parties to the contract and the terms employed descriptive of the amount to be paid are not conclusive of the interpretation and legal effect. Thus, a *sum denominated ‘liquidated damagesr by the parties may nevertheless be held to be a penalty, and though the word ‘penalty’ be used, the sum so termed may be deemed liquidated damages. "Where, however the .term ‘penalty’ is employed, the doctrine of some cases is, that it is to be regarded as more nearly conclusive of the intent of the parties than in the opposite case where the language is ‘liquidated damages.’
“To the use of the terms ‘forfeit,’ ‘forfeiture, or ‘forfeit and pay, ’ no very uniform meaning’ has been ascribed. In some cases such terms have been held to import a penalty, in others liquidated damages. The true rule is, that the construction to be given to such phraseology will depend upon its connection with the other parts of the instrument, in the light of all the surrounding circumstances.
‘ ‘ One of the most universally recognized indications that a penalty was intended, and not a mere liquidation of the damages, is, that the actual damages on a breach of the contract would be readily ascertainable. Or perhaps the proposition more accurately stated is, that this consideration is frequently determinative of the construction which the courts will adopt, irrespective of the intent of the parties.
“Where the contract is of such a nature that the actual damages on a breach could not be readily proved and recovered as such, the courts incline strongly to the view that a sum named therein was intended as a liquidation of the damages by the parties. It has been held, indeed, that the only cases in which the courts will carry into effect an agreement to pay a fixed and stipulated amount of damages, are those of such nature- that the damages resulting from a breach, are not regulated with certainty by any rule of law and cannot be readily ascertained by a jury. In proportion, therefore, as the difficulty of ascertaining the actual damages by proof is greater or less .where this difficulty grows out of the nature of such damages, in like-proportion is the presumption more or less strong that the parties intended to fix the amount as liquidated damages. ’ ’

Now that is a general statement of the rule. There are a great many authorities and a great many illustrations cited, but, as I say, in this case we believe we have a right to consider what we know about the business of producing oil; what is universally known. This oil and gas lease was given in order that the lessor might derive the profits of the royalty stipulated for. In lien of the royalty in the event that the wells are not drilled, he is to have $100 for each well. The amount does not suggest a penalty, and that fact taken in connection with the other fact that the damages resulting from a failure to comply are not usually ascertainable — indeed, it may be said I think, can be scarcely ascertained at all with any degree of certainty — it would be mere guess work to fix the damages; and in view of these things we regard the amount so referred to by the parties and upheld by the court, to be stipulated damages, and holding this view, we affirm the judgment of the court below.

Haynes and Wildman, JJ., concur.


text:
    QUIET TITLE — EQUITY.
    [Wood (6th) Circuit Court,
    November 25, 1905.]
    Parker, Haynes and Wildman, JJ.
    George Challen v. John V. Martin et al.
    In Action to Quiet Title Agreed Line mat Determine Respective Rights op Claimants even in the Absence op Doubt, Uncertainty, or Dispute.
    In a suit in equity, where the parties on both sides are seeking to quiet their title to a strip of * intervening ’ land, and the court is confident from the evidence that the purpose of the original grantor was to give to his two sons-in-láw equal portions of the disputed strip, and it was so understood by them, and a line midway of the strip was acquiesced in by them as the dividing line, and the occupation has not been of . such a character as to give title by prescription, a decree will be granted making such line the established boundary between subsequent grantees and heirs, notwithstanding an ambiguity in the original deeds gives color to the claim Of the plaintiff to a legal title in the whole strip.
    [For other cases in point, see 2 Cyc, Dig., “Boundaries,” §§ 195-205. — Ed.]
    [Syllabus approved by the court.]
    Appeal from Wood common pleas court.
    Edward Beverstock, for plaintiff.
    J. 0. Troup and F. P. Riegle, for defendants.
   PARKER, J.

The ease of George Challen v. John V. Martin et al. is in this court by way of appeal. I cannot do better perhaps than by reading the pleadings.

The petition states that the plaintiff is the owner in fee simple of the northwest quarter of section number nineteen, town three north, of range number nine east, in Jackson township, Wood county, Ohio; that said northwest quarter contains 179 acres, and that each of the defendants, as widow and heirs at law of Robert M. C. Martin, deceased, claims some estate and interest adverse to plaintiff in and to the east nineteen acres of said northwest quarter; but plaintiff avers that each of said defendants had no estate or interest whatever in and to said quarter section or in andv to any part thereof. Wherefore, plaintiff prays that he may be adjudged the owner in fee simple of said premises, freed from, all claims or estate or interest therein of said defendants .and each of them,- and that he may have all other relief to which in equity, he may be entitled.

The defendants for answer to the petition of the plaintiff say:

That John V. Martin, Fannie Helper,,Charles E. Martin, Eliza E. Sargent, Isaac Martin, Annie C. Derr, Jennie Lease and Samuel Martin are the only heirs at law of Robert M. C. Martin, deceased, and that the defendant Barbara Martin is ¿is widow:

That on October 27, 1862, Abraham Kagy, who was then the owner in fee simple of the north half of section number nineteen, township three north, range nine east, containing 338 acres of land, deeded to Daniel Spitler the northwest quarter of said section, which said deed set forth as containing 168.86 acres of land; to Robert M. C. Martin, the northeast quarter of said section, which said deed set forth as eontaiir-ing 169.45 acres, intending thereby to divide said half section equally between said Daniel Spitler and Robert M. C. Martin.

That said deeds to Daniel Spitler and to Robert M. C. Martin were recorded on October 27, 1861, and were recorded in volume “ T, ” pages 404 and 405, of the records of Wood county, Ohio.

That the said Daniel Spitler and Robert M. C. Martin, ascertaining that the north and south quarter section line did not divide said north half of said quarter section in two equal parts, and that the northwest quarter of said section contained 178 acres of land, and that the northeast quarter contained 160 acres, entered into an agreement to have a line established, dividing said half section into two equal parts and that the said Robert M. C. Martin, should be the owner in fee simple of the land in said half section lying east of said line and that the said Daniel Spitler, that lying west of said line.

That thereafter in the year, 1879, in pursuance of said agreement, the said Daniel Spitler caused said line to be established and the corners of said two tracts of land were set 2.36 chains west of the west line of the northeast quarter of said section.

That the survey establishing said line is recorded in the records of the surveyor of Wood county, Ohio, as survey number 776.

, That said Daniel Spitler was the grantor, through his heirs, to the plaintiff herein, of said northwest quarter of section number nineteen, township three north, range nine east.

That since the year, 1879, have had open, notorious and adverse possession of 9.45 acres off the east side of the northwest quarter of said section east of the line as established as aforesaid.

That since the date of the conveyance of the northeast quarter of said section, to Robert M. C. Martin, the said Robert M. C. Martin and his heirs have paid the taxes on the said 9.45 acres off the east side of the northwest quarter of said section, amounting with interest to the sum of $ — .

That said defendants are the owners of said strip of land off the «ast side of the northwest quarter of said section 2.36 chains wide, containing 9.45 acres of land.

And the defendants allege that before the plaintiff parted with any valuable consideration for the said northwest quarter of said section, the plaintiff had knowledge and notice of the defendants’ claim to said premises.

That the defendants deny each and every allegation in the petition contained, not expressly admitted, herein.

And for further answer to the petition the defendants say, that in the year, 1903, the plaintiff rented of the defendants the said strip of land off the northwest quarter of said section, 2.36 chains wide, containing 9.45 acres of land, and that the possession of said plaintiff of said premises is the possession of the defendants.

Wherefore the defendants pray that they may be adjudged to be the owners in fee simple of said strip of land off of the east side of the northwest quarter of section number nineteen, township three north, range nine east, 2.36 chains in width containing 9.45 acres of land, free from all claims or estate of the plaintiff; that the title of the defendants thereto may be quieted as against the plaintiff, and to all relief to which in equity they may be entitled.

For reply to tbe answer and cross petition of tbe defendants, tbe plaintiff represents and says to the court:

That he admits that the parties named in said answer are tbe only-heirs at law of Robert M. C. Martin, deceased; admits that on October 2, 1850, Abraham Kagy, by deeds duly executed, and who was then the owner in fee simple of the north half of section number nineteen, town three north, range nine east, deeded vto Daniel Spitler the northwest quartét of said section, and to Robert M. C. Martin the northeast quarter of said section; admits that said deeds so executed were recorded in volume “T,” pages 404 and 405 respectively, of the records of deeds of Wood county, Ohio; admits that Daniel Spitler; through his heirs, was the grantor to plaintiff herein, of the northwest quarter of said section nineteen, township three north, range nine east, but denies each and every other allegation in said answer and cross petition made, set forth and contained and not herein specifically admitted.

And for further reply herein plaintiff says:

That in the original survey of the north half of section nineteen, the excess therein over and above eighty acres for each half quarter section in said north ‘half of said section eighteen, contained under said original survey, ninety-eight acres of land; and since the time of said original survey no change has been made therein. Wherefore plaintiff prays as in his petition herein.

It appears from the pleadings as well as from the evidence, which we have here, that the controversy is about a strip of land containing about nine acres, lying along a part of the east side and off a part of the northwest quarter of section nineteen in Jackson township. The action is brought by the plaintiff to quiet his title to this strip of land. The defendants on the other hand assert their ownership to the .strip, and they desire to have their title quieted.

It appears that this land was conveyed by the United States government to Andrew Hite by two patents of the date of August 10, 1837, the patents conveying to him all of the north half of that section; the one patent covering the north half of the northwest quarter, and the north half of the northeast quarter containing 169.42 acres; the other patent covering the south half of the northwest quarter, containing 89.44 acres, and the south half of the northeast quarter, containing eighty acres. It appears from the'se patents that the amount of land contained in these tracts was about 169 acres. In one it is mentioned as 169.44 and the other 169.42 but in this discussion I will omit the fractions because they are not essential. I shall only say that what is said about them' in the description confirms the view that we take as to what was intended by the parties.

Now by certain conveyances the title to all this north half of the section was vested in one Abram Kagy, about the middle of the last -century. Kagy was the assignee of all this north half of the section and by two deeds of a certain date, October 27, 1852, he conveyed all ■of this north half of the section to his sons-in-law, Spitler and Martin. To Spitler he conveyed the northwest quarter of the section, and to Martin he conveyed the northeast quarter of the section. It seems that he was aware of the fact that there was in this half section more than 320 acres; that it overrun about eighteen acres. His purpose seems to have been, however, to divide the track evenly between his two sons-in-law. It would appear from the deeds that they were purchasers and paid equal consideration for the amount conveyed to them; so he describes the amount conveyed to one as being 169 acres or about that and the amount conveyed to the other as 169 acres or about that. As a matter of fact the government survey which was shown to us and as in evidence, discloses signs of this overplus to the west eighty acres of this half section, and perhaps if there were no more in these deeds than a description of these subdivisions of the survey, the part deeded to Spitler would have carried the whole overplus of eighteen acres, and the deed to Martin would have carried the 160 acres, and perhaps it is true that, even with what appears in the deeds in addition to the description of these subdivisions, that legal title to no more than 160 acres was conveyed to Martin and that legal title to 160 acres and that additional eighteen acres was conveyed to Spitler, but we have to consider here more than the bare, naked legal title of the parties; it is a suit in equity and the equitable.action of the court is invoked and required.

Nowithstanding what .may have been the result with respect to the legal title, we are entirely confident from the evidence that the purpose of Mr. Kagy was to give to each of his sons-in-law an equal portion of this tract of land and that it was so understood by grantor and grantees.

The plaintiff in the case has by conveyances become the owner of the portion conveyed to Spitler; the defendants in the case are the owners of the northeast quarter of the portion conveyed to Martin. Mr. Challen, the plaintiff, became the owner of the northwest quarter some two years ago. In 1879, Martin and Spitler came together and took to their aid a surveyor and'undertook to divide this property up in accordance, apparently with their understanding of their rights in their respective deeds. They knew where the government survey located the line between these quarter sections; they knew where that line was; that was used as a starting point from which to determine a new line to divide their two tracts of land, and a new survey was made locating the line about eight rods west of the line of the government survey. The width of the strip, I believe, in 2.36 chains.

It does not appear to us from the evidence that there has been any adverse possession of this disputed strip, which is the east nine rods since that time; that is to say, we do not find that the grantors of the plaintiff have occupied it at any time in an adversary way. Nor do we find that the grantors of the defendants, or the defendants, have occupied it in such á way that they could have acquired a title to it by-prescription. That part of the territory has, during most of these years, been undeveloped, uncleared and woodland, and jn no fit condition for cultivation. A little strip upon the north part was cleared up some twenty-one or twenty-two years ago, but the most of it has, during most of these years since the survey was made, been woodland.. There has been no fences run between the lines since this survey was fixed by stones set. What was done suggesting aüy adverse claim, it appears to have been done by mistake of the occupiers or by acquiescence. The intention of the parties was to fix this line between them and to claim up to the line ever since and this has been done by each and has been done by acquiescence of the other in each case. There has been no dispute about that. The mutual intent and purpose has been quite-manifest.

Now it is urged on behalf of the plaintiff that this has not been effective to transfer the title of these nine acres to the defendants. This is not a question of fixing a disputed boundary; not a question of fixing a boundary line at all, but it is a question of an attempt to transfer the title to nine acres of land from one to another.

We do not take that view of it. We think there is enough in the deeds from Kagy to give rise to a doubt of the ownership of this strip-of land; that the description of the number of acres in the deed was enough to give rise to an ambiguity; that the fact that these parts were described as subdivisions of the section is not enough to vest with absolute certainty so that there can be no doubt about the line between the tracts, and whenever there is such uncertainty, the authorities-are clear that the parties can fix the line and this would not be contrary to the statute of frauds. It seems to us, from the consideration of certain cases cited to us, that even if this were not so, even if it were a matter 'of admitting of uncertainty, that still the parties might agree upon the .-line of demarkation between their respective tracts, and holding up to-such line for twenty-one years would fix the title of the parties up to the line.

I cannot take time to review the authorities that have been cited. I will say that the cases cited will be found in McAfferty v. Conover, 7 Ohio St. 99 [70 Am. Dec. 57]; Hamil v. Carr, 21 Ohio St. 258; Bolo v. Richmond, 25 Ohio St. 115; Terry v. Chandler, 16 N. Y. 354 [69 Am. Dec. 707]; Cragin v. Powell, 128 U. S. 691 [9 Sup. Ct. Rep. 203; 32 L. Ed. 566]; Hagey v. Detweiler, 35 Pa. St. 409; Smith v. McKay, 30 Ohio St. 409, 417; Yetzer v. Thoman, 17 Ohio St. 130 [91 Am. Dec. 122], We have examined these cases, and other cases. In the case of McAfferty v. Conover, supra, which was an action in ejectment, Judge Swan, in starting out in his opinion, says:

“No doubt the rights of these parties could be readily adjusted, and upon just principles, in a court of equity. Our inquiry now isi Wliat are their rights at law?”

And so he proceeds to inquire into that question, and reading from page 106:

“Thus where the true lines are in fact unquestionable, and parties by mistake agree upon an erroneous line as their boundary, and suppose the line agreed upon to be their true line, and fence to it, their acts and declarations do not operate in the nature of an estoppel. A party will not forfeit his estate by a mere mistake; nor can the statute of frauds be thus evaded. Something more is required to transfer the title. If there has been acquiescence, adverse possession and improvements made in accordance with such erroneous line, under such circumstances as that the owner is chargeable with gross negligence amounting to fraud, an estoppel in pais may probably permanently establish the erroneous line. ’ ’

Well, that is not this case. It is not a case of an erroneous line being agreed upon by mistake of the parties. The parties with their eyes wide open agreed upon these lines.

Judge Swan continuing, says:

“There is another class of cases where the line between the owners of land cannot, with certainty, be ascertained; and because uncertain, they agree upon and establish the line. Such agreement settles the line; not by estoppel, but by agreement.”

A case very near like the kind of case referred to by Judge Swan is that of Bolo v. Richmond, 25 Ohio St. 115, and yet the ease differs in this, that there was not an uncertainty about the true line. It is similar to the case at bar in other respects; that is to say, there was not an uncertainty as to the true line of survey of these quarters. Nevertheless the court held in that case, where parties agreed upon a line and held up to it, that that should determine their rights. I shall not take time to read from -this decision, but I will call attention to the dissenting opinion of Judge Mcllvaine, emphasizing the point that was decided in the court. On page 126 he says :

“The grounds of dissent will readily appear from the above statement of the case. It will be observed that the case, as presented to us upon the record, as I understand it, does not involve any question under the statute of limitations. The defense, of twenty-one years of adverse possession must be regarded as having been abandoned by the defendant. Such was the effect of his disclaimer, made in open court, at the trial. Nor does the judgment rest upon the doctrine of ‘ an agreed line.’ There is no pretense that there was doubt or dispute, at any time, as to the location of the true line between the east and yest halves of the quarter section.”

Judge Mcllvaine seems to have entertained the idea that is urged by counsel for plaintiff, that in order that the doctrine of “an agreed line” shall take effect, there must be doubt, dispute and uncertainty. We ihink there was ground for doubt here but we do not deem that essential in view of this decision' of the Supreme Court.

Now the equities of this case, it seems to us, are very clearly' with the defendants. The plaintiff bought with the understanding that he wa^ only receiving 169 acres, and he paid a certain price per acre, and only paid for 169 acres.

Soon after he bought this land he conceived the idea that he had title 1o this strip. If he had the legal title it was purely technical. The equities are against him, and our view of the matter is, to conclude without further discussion, that the petition should be dismissed, prayer denied, and decree in favor of the defendants upon the cross petition.

Haynes and Wildman, JJ., concur.


text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    November 6, 1905.]
    Parker, Haynes and Wildman, JJ.
    Herman Bresewski, an Infant, v. Royal Brush & Broom Co.
    1. Action fob Damages cannot be Predicated upon Pact of Obstruction on Floor, of which Master could have had no Notice.
    An action for damages for personal injuries cannot be predicated upon the fact that the plaintiff was injured by falling over a piece of wood lying on the floor of a factory; where it appears from the evidence that the floor was ordinarily clean and in good condition and that if such bloek of wood was on the floor as alleged, it had been there not more than five minutes, and that the attention of the defendant had not been drawn to it or that by the exercise of reasonable care it would have been drawn to it within such time.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 188-196. —Ed.]
    ,2. Question whether Failure of Employer to Guard Machinery was Negligent is for Jury. ,
    Proof of the failure of an employer to place guards about the band wheel and main belt of certain machinery furnishes under the laws of this state, at least a scintilla of evidence of negligence on his part, and the question should be submitted to the jury to say whether or not under all the circumstances of the case the master was guilty of a want of due care.
    [For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 118, 119, 687-■890. — Ed.]
    S. Negligent Exposure of Machinery by Master is Proximate Cause of Injury to One Falling Against Same.
    If it appear that personal injuries are the result of two concurrent and practically contemporaneous causes, one of which is the negligence of an employer, both will be regarded as proximate causes of the injury; hence if a personal injury to a servant was caused by his falling against a main belt and band wheel of certain machinery which was exposed by the negligence of the master, the fact-that such fall contributed primarily to the ' accident will not relieve the master from the consequences of his negligence.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 242-245; ■“Negligence,” §§ 235-237, 240-253 — Ed.]
    ERROR to Lucas common pleas court.
    Ashton Coldham, for plaintiff in error.
    King & Tracy and H. W. Lloyd, for defendant in error.
   PARKER, J.

This is an action to recover damages on account of personal injury to this infant. He was a boy fourteen years of age; he was employed by the Royal Brush and Broom Company, and while in their employ working in their factory in this city, he fell, and, as he fell his hand and arm went into part of the machinery and was caught by an unguarded belt and pulley or wheel, and was drawn into it and injured. It is averred in the petition that the company was negligent in that it allowed a certain bloek or piece of wood to remain upon the lioor where he was at work and that he stumbled over this and fell; and, further that the company was negligent in that it did not keep the' machinery guarded as required by statute, and that this unguarded machinery was one of the causes of the physical injury he sustained.

' At the close of the plaintiff’s evidence, on motion of the defendant ■the jury was directed to return a verdict for the defendant,, which was done, and judgment was entered upon it; and it is on account of this action that the plaintiff in error prosecutes error here. It was said by the judge of the court below, in passing upon this motion that there was no evidence tending to show that the defendant was in fault in the matter of allowing the block of wood to remain upon the floor, and it farily appears from the evidence that the floor was kept clean and in good condition, and that if this block of wood was upon the floor, as charged1 by the plaintiff that it had been there but a few moments, not more than •five minutes and it did not appear that the attention of the defendant had been called to it, .or that by the exercise of ordinary care it would have been drawn to it within that time.

It did appear, however that this machinery was unguarded, that is to say this belt and the wheel or pulley around which it revolved. The plaintiff below attempted to prove that it would have been practicable to guard it as provided by statute, but he was not permitted to do this, and no weight or consideration was given to the fact of the machinery being unguarded, because of the view.this court entertained that the fact that the machinery was unguarded was not a proximate cause of the injury.

We are favored with the opinion of the judge of the court below and we observe that when he comes to discuss this matter fully and carefully upon the motion for a new trial, he states that the questions are two: first, was the defendant ’negligent in not enclosing the belt and pulley ? and second, if so, was that negligence the proximate cause of thé accidents And he continues:

“As to the first question Rev. Stat. 4364-89c (Lan. 7344), among other things provides that the owners and operators of factories shall, enclose all exposed cogwheels, fly wheels, band wheels, all main belts transmitting power from engine and dynamo, or other kind of machinery” — and then a hiatus on account of part of the statute not applicable — “with substantial railing.”

Revised Statutes 4364-89c (Lan. 7344) makes a violation thereof a misdemeanor, therefore the act is penal in its nature. But whether it should be strictly or ^liberally construed is, in my opinion of no importance, for the reason that the provision above quoted states a rule of evidence and nothing more can be claimed for it. There is no evidence that the belt with which the plaintiff came in contact was a main belt, and the word pulley is not to be found in that portion of the statute, to which I have referred. That the omission of the word pulley was intentional and its apparent distinction between a pulley and a band wheel or fly wheel is evidenced by the fact that provision is made therefor by the subsequent portion of the section.

Now it seems to us, upon looking at this record that the learned judge must have been under some misapprehension as to the evidence that had been adduced. He says, “It will be observed that there was no evidence that the belt with which the plaintiff came in contact was a main belt.” But one Charles A. Bassett was a witness for the plaintiff. According to his testimony he was a man of experience in machinery and with machinery of this character, and, in the course of his examination he is asked this question:

“I will ask you how that machine is operated?” (I may say here that the machine in question on which the boy was hurt is technically called a sticker, it is a wood working machine.) Q. “I will ask you how that machine is operated?” A. “It is operated, do you mean driven?” Q. “Yes, driven, how does it get its power?” A. “It was driven by means of a belt over a line shaft very near over the machine, going to a countershaft to the machine.” I undestand that to mean a countershaft which was a part of the machine, a countershaft off the machine. Q. “Around what did the belt pass?” A. “Around the pulleys, a large pulley on the main shaft and a tight and loose pulley with the drive pulley of the machine. ” Q. “ Those pulleys, what other terms or names is there for them, — wheels?” A. “Yes, sir, they are sometimes called wheels” — Then the court inquires, “Do you mean a band wheel?” A. “Not in this case.” Q. “The belt that you have before you, is that a main belt?” A. “Yes, sir.” Q. “These wheels, are they wheels pertaining to the machinery?” A. “Yes, sir, etc.”

So it will be observed that the witness testifies distinctly that the belt in question was a main belt; he also says that this was not a- band wheel, or at all events, he answers when asked if he means a band wheel, “No, sir, not in this case.” I am bound to say we do not understand this answer of the witness. It seems to us from an examination of the photographs and from the little knowledge we have of machinery and from the description of the witness as already given of this machine, that the wheel in question was in fact a band wheel. There must have been, we think some misapprehension upon the part of the witness when he gave this answer, or he did not mean what the answer would seem upon its face to import. The wheel in question on the machine was what is called a tight and loose pulley, part of the wheel being tight to the shaft rim or face, the other part, perhaps half of the wheel being-loose, so that when the belt connected with the main shaft is put over upon the part of the wheel that is tight, it causes the machine to operate when it is moved over into part of the pulley which is loose, of course the wheel simply goes round and round on the shaft and the machine does not operate.

Now the statute upon this subject is Rev. Stat. 4364-89c (Lan. 7344) and it provides in part as I have read from the opinion of the judge of the court below. It will be noticed that it mentions among other things to be protected, “exposed cogwheels, fly wheels, band wheels, all main belts transmitting power from engine to dynamo, or other kind of machinery, ’ ' etc. And we understand that a band wheel mentioned in this connection is such a wheel as is under consideration here, a wheel that is otherwise described as a pulley. The judge below thought not, because he s^ys that in another part of the section pulleys are specifically mentioned and provision is made therefor. But the only other provision in the section when pulleys- are mentioned is this “the guarding of all saws and other woodcutting and wood shaping machinery, providing shifters for shifting belts, and poles and other appliances for removing and replacing belts on single pulleys, and adjusting runways, and stag-' ing used for oiling and other purposes, more than five feet from floors with hand railing and pi’oviding countershafting with tight and loose pulleys or such other suitable appliances, in each room, separate from the- engine room, ’ ’ etc. There is no other provision for the guarding of pulleys, unless it is to be found‘in this provision, and we think it is. The judge speaks of fly wheels and band wheels as if they were similar parts of the machine; but we understand that they are quite different, that a fly wheel is not a band wheel and a band wheel is not a fly wheel; that a pulley upon a machine over which a belt or band passes, by which the machine is operated, is a band wheel; that it cannot well be anything else — the very name of the Wheel implies that. I read from the Standard Dictionary the definition of pulley — one of the definitions “pulley, a wheel usually flat faced, or nearly so, driving, carrying or being driven by a leather belt or the like, sometimes called a belt pulley.” And from Webster's Dictionary under the head of pulley. “A wheel with a broad rim or grooved rim for transmitting power or imparting power to the’different parts of machinery or for changing the direction of machinery by means of a flat belt or round cord or loop.” And we all know that the danger in and about a belt and pulley is the fact that the belt may draw one into the pulley, and that it is by reason of being drawn between the belt and the pulley that injuries frequently occur; and we have no doubt but what it was the purpose of the legislature to guard against accidents of this character. And they could not enclose this kind of a wheel or guard the belt without at the same time guarding the pulley. It is sufficient however, for the purposes of this case upon this point to say that there is evidence in the record, tending to show that this is a main belt and that a main belt must be guarded' is clear from the statute.

The fact that this main belt was not guarded clearly appears;; there is no dispute about it. If an injury resulted to this boy in consequence of the belt not being guarded, or the pulley and belt, the condition of it, affords some evidence of actionable negligence. What degree of evidence under the decisions of this state, we are not prepared to say; we do not feel called upon to say. 'It is sufficient for the purposes of this ease to furnish some evidence. In some jurisdictions it is evidence of itself per se negligence; in some jurisdictions it raises a presumption of negligence; in others the term prima facie case of negligence is used. But certainly it furnishes a scintilla of evidence upon which a case so far as that feature is concerned, should go to the jury. For rules on the subject and citations and decisions of different states, I cite Shearman & Redfield, Negligence See. 13. There have been some holdings along this line by the circuit courts and other courts inferior to the Supreme Court of the state; but our attention' has not been drawn to any declaration by the Supreme Court.

That leaves then for consideration, we think, only the question which the learned judge has mentioned as the second question in the case. We 'think in deciding what he called the first question, that he must have overlooked the statement of the witness that this belt was a main belt.

Now, this young man was working at this machinery; there were many machines on the floor, it was a large factory, a large floor. He was engaged in carrying blocks of wood from one side of the building part way across the building, down a broad aisle to another machine called a shaper. He had been carrying during the forenoon of the day from a certain corner of the room, which did not require him to go very near to this machine called the sticker where he was afterward injured. The blocks had all been carried from that part; he was required to go to a place near the wall immediately in the rear of this machine; and his direct way to carry these blocks over to the shaper where he was required to carry them was to use the alley way between this sticker and another machine, a broad, comfortable, safe place apparently, something like five feet six inches in the clear; but as he was passing through there with his first load of blocks which appears to have interfered somewhat with his seeing, for the blocks were piled us as high as his nose, as he testifies, he came to the vicinity of this machine he fell; he either stumbled or slipped or his ankle turned or something happened that he fell, and as he fell, this machine being to the right of him, he threw out his arm in some way, the machine was in operation and his arm was caught between the belt and the pulley and wrenched and injured.

The court below was of the opinion that the fact that the pulley was not guarded was not a proximate cause of the injury, and the same line of argument is pursued by counsel for the defendant in error, that the proximate cause of the accident was this block of wood which caused the boy to fall, that the proximate cause of the injury, the physical injury to the boy may have been the failure to guard the machine; but that the failure to guard the machine was not the proximate cause of the accident. By this course of reasoning the so-called accident is divided for purposes of analysis into the accident of falling and the result of the accident, to wit, the getting of his hand and arm into the machine and thereby injuring it. It seems to us that this division is not allowable, and is not warranted; that the whole occurrence comes within the description of the accident; that it was a continuous series of events, following one upon the other, the natural sequence of each succeeding event being dependent upon that which preceded it; and that the accident consisted not only in slipping and falling toward the machine, but in falling into the machine and in having the arm drawn into the machine and injured; and that while the falling or stumbling over the blocks may have been a sufficient and effective cause of the first part of the accident or falling toward the machine, the fact that the machine was not guarded and that the boy’s hand and arm were thrown into it, whereby it was injured, was a proximate cause of that part of the accident.

The purpose of this statute, as we understand it, was and is to prevent just such occurrences and guard against them; that was the purpose of a great many provisions that we find in the statute relating to the guarding of machinery and the management of factories, and we suppose that there may be many cases where the primary movement which results in an injury from such a machine, may be a pure accident or an inadvertence and that the companies not observing this statute, the employer not observing this'statute may be liable for the consequences of such accidents. It is intended to guard against accidents and injuries resulting from one making a misstep, making a false move as he is at work about these dangerous machines, and if the employer can in all cases escape liability by showing that there was some other cause of the first primary movement, the initial movement leading up to the ultimate accident and injury, then it is quite evident that the statute has not served its purpose. By way of illustration, the statute on the subject of building may be mentioned, the statute that certain counter floors shall be placed in buildings as they are in process of construction, Rev. Stat. 4238-20 (Lan. 7420), which requires that:

“Whoever being the owner, lessee, agent, factor, architect or contractor, being engaged in and having supervision and charge of the building, erection or construction of any block, building or structure •or more than two stories in height, who shall neglect or refuse to place or have placed upon the joists of each and every story of such block, building or structure, as soon as joists are in position, counter floors of such quality and strength as to render perfectly safe the going to and fro thereon of all mechanics, laborers and other persons engaged upon the work of construction or in supervising the same, or in the building -or placing of materials therefor, shall be deemed guilty of a misdemeanor and upon conviction thereof in any court of competent jurisdiction shall be fined.”

Now it can be imagined in a ease of that kind, where one is working upon part of the'building that is not floored as the statute requires, he may fall and by reason oí the floor not being below where he falls, he •goes on down through. He is not injured by the fall, for the floor is not there. He is not injured, it may be said, by the absence of the floor, that is to say, not precisely that, — he is injured by coming to a sudden stop upon something beneath. It would be like the story we have heard of a workman upon a building falling down some thirty or forty feet. He said he was not injured by the fall, but he was jarred considerably by the sudden stop he made when he reached the ground. Now, we suppose that in a ease of that kind, although one may inadvertently fall through the space where the floor should be, although he may step uopn something whereby his ankle turns, he suddenly falls, that liability cannot be escaped from on the ground or the theory that the primary cause •of the accident was some inadvertent or accidental movement that he made, which caused him to fall.

.In a case like this one at bar, to be sure if one keeps away from the machine at a safe distance, he will be safe, he will not be hurt, the machine will not travel to him, it will keep its place; but it is to be anticipated that a man will go near these machines and a sudden gust of wind may draw his clothes into the machine, Of course if a person gets into a machine by a movement that is negligent upon his part, that would be a defense; but if he is not negligent, if by mere inadvertence, when he is going about his work, by pure accident he falls into the machine, we are of the opinion that liability cannot be escaped

upon tbe theory that there was something lying back of the fall that brought him in contact with the machine, that that thing lying back, that-primary cause is not only the proximate cause, but the only proximate causé of the injury. We had occasion to consider this subject with some care in the case of Ziehr v. Paper Co. 28 O. C. C. 342. That was an accident in many respects like this. In that case there were unguarded cogs. Mr. Ziehr was working in the vicinity of them. The floor was slippery. There appeared to be no negligence upon the defendant’s part in having the floor slippery, that seemed to be unavoidable in the kind of work they were doing. But Mr. Ziehr slipped and threw out his hand for protection, and he came in contact with these cogs and was injured. We held in that ease that the fact that the cogs were unguarded was a proximate cause of the injury, although the primary cause, one of the proximate causes was the slipping upon the floor, on account of which there would be no liability. And in the course of the opinion by Judge Hull in that case, a number of decisions are cited and some of them are commented upon, and in the course of that opinion reference was made to' the case of Milner v. Blickley, 70 Ohio St. 429 [72 N. E. Rep. 1162], a case in which Mr. Blickley while passing along the sidewalk on Jefferson street, fell into the area way by. the side of the Milner building and was injured, it was unguarded, the front was in the sidewalk, the place where an elevator was constructed to take goods into the cellar and out of the cellar; and although the primary cause of that accident was the slipping upon the icy sidewalk, yet we held that one of the proximate causes of' the injury was the failure of the Milner Company to guard this area way. Our decision in that case was reversed by the Supreme Court. There’were-two grounds urged for a reversal, one that we were in the wrong upon the doctrine of «proximate cause, the other that the record disclosed that Blickley was guilty of contributory negligence. The decision of the Supreme Court was not reported; and we are, therefore, in ignorance of the-real grounds upon which the Supreme Court decided the case. But until we are better informed, we feel like adhering to that doctrine. We feel we were right in that case, and that we were right in the case of Ziehr v. Paper Co. supra, which is now pending in the Supreme Court; and upon the authority of these eases we feel that this case so much like them especially so much like the case of Ziehr v. Paper Co. supra, must be decided in the same way, at least until we are better informed, therefore the judgment of this court will be that the judgment of the court below be reversed and the case remanded.

We do not mean to hold that the failure to guard the machine was,. under the circumstances, as a matter of law a proximate cause; but. simply that it was a question to be submitted to the jury to say whether or not under all the circumstances, the company might have reasonably anticipated an accident of this character resulting from this exposed machinery.

Haynes and Wildman, JJ., concur.


text:
    CRIMINAL LAW — INDICTMENTS.
    [Wood (6th) Circuit Court,
    1905.]
    Haynes and Parker, JJ.
    (Judge Hull not sitting.)
    James Limber v. State of Ohio.
    INDICTMENT UNDEB RET. STAT. 6820 (I-iAN. 10420) NOT BAD FOB DUPLICITY WHEN Acts,Chabged in Conjunctive.
    An indictment will not be quashed for duplicity which charges that the defendant shot with intent “to wound, maim, and kill,” charging the crime in the conjunctive whereas the statute, Rev. Stat. 6820 (Lan. 10420), describes the crime in the disjunctive, “with intent to kill, wound, or maim.”
    [For other cases in point, see 5* Cyc. Dig., “Indictments and Informations,” §§ 406-428 — Ed.]
    ERROR to Wood common pleas court.
    E. T. Dunn and Edward Beverstock, for plaintiff in error.
    J. E. Ladd, prosecuting attorney, and E. G. McClelland, for defendant in error.
   PARKER, J.

The plaintiff in error, James Limber, was indicted under Rev. Stat. 6820 (Lan. 10420) and was charged in the indictment that on the twenty-third day of September in the year of our Lord, one thousand, nine-hundred and four, with force and arms in said county of Wood and state of Ohio, with a certain pistol then and there loaded with gunpowder and one leaden ball, which said pistol, he, the said James Limber, in his hand then and there had and held, one Abram E. Freeman did unlawfully, maliciously and purposely shoot, with intent then and there and thereby him, the said Abram E. Freeman, to wound, maim and kill, contrary to the form of the statute, etc.

A motion to quash on account of duplicity was filed, and overruled, and exception taken to the ruling. The case then went to trial and resulted in the conviction of the plaintiff in error, and it' is said that the error which the court committed in overruling this motion to quash was repeated in the charge, and that it was not in any way cured by the verdict, since the verdict is general in form. It is said that the duplicity consists in charging that the plaintiff in error was guilty of the crime of shooting with intent .to wound, and with the additional crime of shooting with intent to maim, and with the further crime of shooting with intent to kill. The statute reads:

'‘Whoever maliciously shoots, stabs, cuts, shoots at, another person, with intent to kill, wound of maim such person, shall be imprisoned in the penitentiary not more than twenty years nor less than one year.”

It will be observed that, while the statute recites what the plaintiff in error claims are different crimes, the matter of wounding, maiming or killing in the disjunctive, the indictment charges him in the conjunctive, that the said James Limber did this thing with intent to wound and kill, and the court in charging the jury said to them: "The defendant must have maliciously shot Abraham E. Freeman as charged in the indictment, and the shooting must have been done with the intent either to maim, wound or kill the said Abraham E. Freeman.” '

It is contended on behalf of the state that these are not three distinct offenses; that these are different forms of stating the same offense and describing it; that these are different ways in which, or means by which the same offense may be committed, and it is along that line of difference that the discussion has run and counsel in the course of their argument have cited a large number of authorities. I cannot take time to call particular attention to a great many of them or to undertake to discuss or review them at length. I will- call attention to a few of the later authorities especially in Ohio, that seem to us to bear directly upon the question. One of the eases cited is Hale v. State, 58 Ohio St. 676 [51 N. E. Rep. 154], Hale was indicted for practicing medicine without having complied with the act to regulate the practice of medicine with-the state of Ohio. The indictment charges that he did knowingly,- wil-fully and unlawfully practice medicine in the state of Ohio without having first complied with the provisions of the act of the general assembly of the state of Ohio entitled, "An act to regulate the practice of medicine in the state of Ohio,” passed February 27, 1896 (92 O. L. 44; Rev. Stat. 4403; Lan. 7507), in this, that at the time and place aforesaid he, the said William F. Hale, did for a fee, to wit: the sum of thirty-five cents, prescribe, direct and recommend for the use of one C. B. McClelland, a certain drug, medicine and agency, to wit, a certain drug, medicine and agency put up in a tablet form as aforesaid and encased in a certain paper box, upon the outside of which said paper box then and there containing said medicine put up in tablet form as aforesaid, he, the said William F. Hale; then and there wrote and signed his ñame to a certain prescription and direction, and he, the said William F. Hale, then- and there annexed and appended the letters “M. D.” to his said name so written and signed to said prescription and direction as aforesaid, ■etc., etc.; that is the substance of the charge.

The statute involved provides that any person shall be regarded as practicing medicine or surgery within the meaning of the act who .shall append the letters “M. D.” or “M. B.” to his name, or for a fee prescribe, direct, or recommend for the use of any person, any drug or medicine” or other agency for the treatment, cure or relief of any wound, fracture or bodily infirmity or disease.

The point sought to be made against this indictment was, that it was bad for duplicity because it charged that he did both of those things described in the statute, viz., prescribed a prescription, and signed his name appending the letters, “M. D.” thereto, and that he did also prescribe a certain drug and received a fee for it. The court held it was not duplicity in this case, and beginning at the bottom of page 679, this Is said by Judge Williams:

“It appears to be a well-settled rule of criminal pleading that, when .an offense against a criminal statute may, in the same transaction, be committed in one or more several ways, as therein provided, the indictment may, in a single count, charge its commission in any or all of the ways specified in the statute, if they are not repugnant; and proof of any one of them will sustain the indictment. This rule is more fully stated in Bishop, New Or. Proced. Sec. 436 as follows:
“ ‘A statute often makes punishable the doing of one thing, or another, sometimes specifying a considerable number of things. Then by proper and ordinary construction a person who, in one transaction -does all, violates the statute but once, and incurs only one penalty. Yet lie violates it equally by doing one of the things. Therefore, an indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction, and, where the statute has “or,” and it will not be double, and it will be established at the trial by proof of any one of them. ’ ”

Counsel for plaintiff in error attempts to distinguish that case from the one at bar in this way:

He says that the thing forbidden by the statute was unlawfully practicing medicine, — prescribing medicine, etc., — and that that might be done in one or more of several ways, either by writing a prescription :and signing his name with “M. D.” appended, or by giving a drug or •prescribing it and accepting a fee for it, and some other ways, but in these two ways at least, and that the crime charged may be committed by all of the other means indicated by the statute; that any one of the several crimes included in this statute might be committed by any one or more of the several ways pointed out in the statute; that it is a crime to do the certain things mentioned in the statute; that it is one crime to do the several things mentioned in the statute with intent to kUl; that it is another crime to do any one or more of those several things with, the intent to wound, and it is another crime to do one or more of those several things with the intent to maim a person; that it would be permissible to charge that one had maliciously shot, and stabbed and cur,, and shot at another person with intent to kill, or that one did one or all of those several things with intent to wound; or that one did one or mor - or all of those several things with intent to maim, but that it is not permissible and it is duplicity to charge that one did one or more or all of said several things with intent both to kill and wound, and maim; that those several acts of' shooting, stabbing, etc., are means by which the, act may be perpetrated; that the act to be perpetrated of which the crime consists in part is distinguished by the intent.

As I have said before, you can kill in one case; you wound in one case, and maim in one case. It will be observed that all of counsel’s contention is based upon the definition which he gives. He analyzes the statute so as to define three separate offenses, but the whole matter made punishable under this statute is described in one section and one sentence, and we do not find authority for the definition and division 1 counsel has been pleased to make here.

We think the statute is meant to reach one class of acts and the performance of any of those acts with any of these intents is the single crime that the statute means to define and reach. That is to say, the statute defines it in the sense that it indicates the elements of it; it does, not define it as we generally understand the term, «definition, — as definitions are usually drawn up by the text writers and sometimes by the courts. If we were to make a comprehensive definition here of the nature, the character of the offense that the statute undertakes to prohibit and for the violation of which it prescribes the penalty, we would say it would be something like this: ‘ ‘ That it is the infliction of certain injuries upon the person,”'or, in case of shooting, “an attempt to do so-by shooting at with intent either to kill or wound or maim. They are not different degrees, for the Supreme Court has said they are not, so-that, according to our view of the matter, if one should do all the acts described here, in all the ways pointed out, with all of the intent indicated, in a single transaction, he would #ommit but one crime; and they are not repugnant; they are not inconsistent. It is possible they might all be done by one person -in one transaction. Of course it would involve a good deal of activity on the party. He might be regarded in the light of one running amuck; he would certainly be a dangerous citizen who would attempt all these things, and that is the way we must view this matter. In other words, it would be possible for one in the same transaction, having the weapons on hand, to shoot, stab, and to cut and shoot at another person, and to do it in the course of that transaction with the intent to maim the person, and with the intent to wound the person, and as his anger and maliciousness grew upon him, with intent to kill the person, and it does not appear to us that an indictment would be bad that would charge that one in an affray or in an angry transaction did all of those things with all of those intents.

Now as I have said, a great many authorities have been cited, and we cannot take time to discuss them. I call attention to them so that the stenographer may preserve them. They are: State v. Leavitt, 87 Me. 72 [32 Atl. Rep. 787]; Hale v. State, 58 Ohio St. 676 [51 N. E. Rep. 154]; Benn v. State, 22 Ala. 9 [58 Am. Dec. 234] ; 2 Va. C. A. S. 231. A great many eases will be found in 27 Cent. Dig. p. 668, Sec. 351. State v. Conner, 30 Ohio St. 405, 406; Jackson v. State, 39 Ohio St. 37; Mitchell v. State, 11 Circ. Dec. 446-450 (21 R. 24); Breese v. State, 12 Ohio St. 146 [80 Am. Dec. 340]; Fahnestock v. State, 102 Ind. 156 [1 N. E. Rep. 372]; State v. Fidler, 148 Ind. 221 [47 N. E. Rep. 464; People v. Leyshorn, 108 Cal. 440 [41 Pac. Rep. 480]; Crain v. United States, 162 U. S. 625 [16 Sup. Ct. Rep. 952; 40 L. Ed. 1097]; Burke v. State, 34 Ohio St. 79; Duttenhofer v. State, 34 Ohio St. 91 [32 Am. Rep. 362]; State v. Pittman, 76 Mo. 56; State v. Kerr, 3 N. Dak. 523 [58 N. W. Rep. 27]; Stoughton v. State, 2 Ohio St. 562, 563; State v. Inskeep, 49 Ohio St. 228 [34 N. E. Rep. 720]; Watson v. State, 39 Ohio St. 123; Mackey v. State, 3 Ohio St. 363; Barber v. State, 39 Ohio St. 660.

The ease of State v. Conner, supra, was a prosecution under the liquor laws, and this was said in the syllabus:

“Under the act ‘to provide against the evils resulting from the sale of intoxicating liquors in the state of Ohio’ (2 S. & C. 1431 [52 O. L. 153; see Rev. Stat. 6940; Lan. 10589]), a count in an indictment charging that the defendant unlawfully, etc., sold intoxicating liquors to one ‘being then and there intoxicated and in the habit of getting intoxicated, ’ defendant knowing, etc., is not bad for. duplicity. ’ ’

It will be remembered that the statute provided that it would be unlawful to sell to one intoxicated, or in the habit of getting intoxicated, and Judge Wright in discussing the matter, on page 406 says:

“It appears to have been claimed in the court below that selling liquor to a person intoxicated was one' offense, and that the same sale to that person, he being a person in the habit of getting intoxicated, was-another, and that by joining the two in a single count, two separate and • distinct crimes were charged. We cannot so regard it. The offense is1, but a single one. There is but one sale of liquor, and but one person to* whom it is sold. The fact that such person represents two characters,.under the statute, does not make the offense double. The indictment, may be sustained, by proving, either that the liquor was sold to one. intoxicated, or by proving that it was sold to one in the habit of getting: intoxicated, or by proving both of these elements.
‘.‘Manifestly, if there are two distinct and separate offenses, a defendant might be convicted on proof of selling to one intoxicated. Theit he might be convicted for selling, at the same time, to the same person, because that person was in the habit of getting intoxicated. Thus would, result two convictions for precisely the same unlawful act.”

Further down he quotes from Bishop, Stat. Crimes Sec. 383: “ ‘If an indictment is to be drawn on a statute in alternative clauses, the pleader, as a general rule, * * * may elect to charge no more than constitutes an offense within one clause, or he may proceed upon two-clauses, or three, or all, as he deems best, and all in a single count; employing the conjunctive, and, when the statute has the disjunctive, or. See also Secs. 521, 759. State v. Batson, 31 Mo. 343; 1 Bishop, Cr. Proced. Sec. 436 and note 3; 1 Wharton, Cr. Law Sec. 390.

“Our statute as to counterfeiting is: ‘If any person shall falsely make, alter, forge, or counterfeit.’ An indictment, alleging the uttering of a ‘false, forged, counterfeit bank note’ is held to be good. Mackey v. State, 3 Ohio St. 363. Stoughton v. State, 2 Ohio St. 562.”

In the ease at bar, manifestly, if there were established that one had shot at, or stabbed, or cut within the course of the transaction, with intent to maim or wound and with the further intent made manifest probably later in the transaction that he did the same things or repeated the same acts with intent to kill, the state could not make-two crimes of that. The state would be confined to one prosecution, and for the one crime growing out of the single transaction of doing: those several things with different intents.

The case of Watson v. State, 39 Ohio St. 123, is instructive along this line. I cannot now take time to comment upon it. That is a case where one was indicted for corruptly offering and promising to a member of the house of representatives of the general assembly of the-state of Ohio, with intent corruptly and feloniously to influence his; vote upon a certain bill then pending in such house, ‘ ‘ a valuable thing, ’ * to wit, stock of the Cincinnati Union Railway Company, of 'the amount and value of $20,000, and a large amount of money of great value. It was charged that this was done to influence him as a member of the-house of representatives, and also to influence him as a member of the standing committee of the house.

It was urged that there was duplicity there; that it charged separate and distinct offenses; that attempting to bribe a member of a legislative committee as to his action as such, was an offense, and that an offer to bride him as such committeeman was a different offense from an offer to bribe him as a member of the house; but the court held that it was not duplicity.'

In the case of the State v. Inskeep, 49 Ohio St. 228 [34 N. E. Rep. 720], the defendant was indicted and charged that he did “unlawfully make an assault in and upon one John W. Moler, and him, the said John W. Moler, did then and there strike and wound,” with the usual conclusion. A motion to quash the indictment was sustained on the ground that, “It contains but one count and two separate and distinct offenses.”

Charged him with striking, and the further offense of wounding; but the Supreme Court held that the common pleas court erred in sustaining the motion to quash, saying:

“The indictment is not bad for duplicity; is in the proper form, and the motion should have been overruled.”

I cannot take further time to go over these cases. We think there is sufficient authority to be found in these cases cited from our own Supreme Court to justify the ruling by this court in this case, and our conclusion is, that the court did not err in its ruling on the motion to quash, and did not err in its charge; that there is no prejudicial error In this record, and the judgment of the court below is affirmed.

Haynes, J., concurs.