author: Marvin, J.

text:
    (Eighth Circuit—Lorain Co., O., Circuit Court
    April Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ.
    SCHAIBLE ET AL. v. L. S. & M. S. RY. CO.

      Appropriation of land by JR. JR. Co. — JR. JR. Co. can not be compelled to include in its petition more land which it might need than it chooses — Motion to compel it to do so not proper. — In an appropriation proceeding by a railroad company, where defendant claims that the railroad company will need more land than is asked for in the petition, the probate court has no authority under the statute to compel the railroad company to appropriate more than the petition asks for.
    The statute provides how one may compel a- corporation to proceed to appropriate land and have damages assessed, but this can not be done by a motion in a pending case, and the corporation can not be required to include in its petition a description of more than it chooses to include.

      Same — Land adjoining highway — Change in highway by JR. £,. Co. — ■ Damages for, proper subject for separate proceeding for damages. — In proceedings by a railroad company to appropriate land adjoining a highway, where it appears that the company, in taking the land described in the petition, would necessarily have to make an alteration in the course or grade or occupation of the highway, such fact can not be taken into consideration by the jury in estimating the damages for the land sought to be appropriated. If any such alteration in the highway should be made so as to destroy or lessen the value of the defendant’s property, he can recover damages therefore in a proper proceeding brought for that purpose, and the appropriation proceedings, instituted by the railroad company, would not be a bar to such suit.

      Same — Off-set of incidental benefits to incidental damages — In such a proceeding general incidental benefits to the land can not be set off against general incidental damages.

      Same — Proper questions in cross- examination. — It is competent for the railroad company to ask plaintiff’s witnesses in cross-examination, whether the work proposed to be done by the railroad company, (in building a bridge over the railroad,) would not bean advantage rather than a detriment to the farm, and that, too, without reference whether this was a case where incidental benefits could be set off against incidental damages.
    Damages to remaining land — Proper measure of damages. — The difference in the value of the owners’ property with the appropriation and without it is the rule of compensation, which must be ascertained with reference to the value of the property in view of its present character, situation and surroundings but not to be enhanced by facts of contingent or prospective character. The damage which the taking of the land and the work to be done thereon, may cause to the remaining land, is to be taken into consideration in assessing the damages in that proceeding.

      Same — Time as to which value of land is to be taken. — But where it is claimed that the value of the remaining land is affected by the appropriation, the value of the same is to be fixed as it was at the time the appropriation proceedings were commenced; and where it appears that before the commencement of such proceedings, the raiload company had graded in the public highway in front of defendant’s premises, and had thereby reduced its valúe, such previous damage is not to be taken into consideration in fixing the damages in the appropriation proceeding, but the land owner may by separate proceedings recover damages for such previous injury to his land.

      Rights of adjoining land-owner in highway property — The right an adjoining property owner has in a highway is his property, whether the fee in the highway be in the land owner or not.

      Trespass by R. R. Co. — Appropriation proceedings no bar to action for damages. — The fact that the railroad company instituted proceedings for the appropriation of land in the probate court under the statute, does in no way affect the land-owner’s rights as they existed to recover damages for a trespass previously committed by the railroad in grading, etc., the adjoining highway to the injury of the land owner.
    Error to the Court of Common Pleas of Lorain County.
   Marvin, J.

Petition in error is filed in this court to reverse the judgment of the court of common pleas and of the probate court of this county; the common pleas having given judgment affirming the judgment of the probate court, in an action which was brought in the probate court by the defendant in error, the railway company. ■ This was a proceeding for the appropriation of the land of the plaintiff in error. A petition was filed by the railway company in the probate court, setting out that for the purpose of carrying out the objects of its incorporation, it became necessary that it should appropriate certain lands of Schaible. The petition then described the lands, and averred that the appropriation became necessary because of .an order of the circuit court of this county to construct a roadway or driveway and bridge over a highway' in this county, this township I believe, where the railroad crosses the highway. A motion was filed to that petition, one of the objects of which was to require the plaintiff to amend the petition, and describe other property.

The first and second subdivisions of the motion read as follows: “The defendants now come and move the court to require the plaintiff to so amend its description in its petition and its map or profile attached thereto as to include in said description so much of the public highway mentioned in said pleading and profile as it purposes to appropriate and cover by its bridge and its approaches on the south side of its proposed bridge.

‘ ‘ Second — Defendants move the court to require the plaintiff to amend its description in its petition so as to contain a specific description of each parcel of property, interest and right within the county sought to be appropriated; the work, if any intended to be constructed thereon; the use to which the same is to be applied, in order to carry out completely the orders and decrees of the circuit court of said Lorain county, in constructing said bridge and its approaches thereto.”

The entire motion' was overruled. I speak first of those clauses of the motion which I have read. The motion seems to have been filed with the idea that the probate court should order the plaintiff in that action to have it appear from its petition, that to carry out its purpose it would be necessary for it to use some portion of the public highway in front of the premises to be appropriated, or of the premises of the defendant, and to require it to include in its petition that highway. I do not know of any authority by which the probate court could have done that. That statute, section 6416, requires a corporation desiring to appropriate, to describe what it proposes to appropriate. Suppose it needs to appropriate five acres, and it files its petition to appropriate four, and says nothing about the balance, there is no authority cited to us, and we know of none, which would justify any order of the probate court that the company should, in its petition, in that proceeding, include the additional acre. By that proceeding it will get the right in that which is described, and not in something else; and if more is needed, the company must appropriate or by some other lawful means obtain the right to use the remaining or other property..

The statute sets out how one may compel a corporation to proceed to appropriate and have damages assessed; but not by filing a motion in a case pending; so that we think the probate court committed no error in overruling the motion to the extent to which I have already called attention.

We think the petition sufficiently sets out what is to be done, and it describes the only property that by this proceeding is sought to be appropriated. I do not mean it might not in this proceeding have included more if it wanted to, but it cannot by such motion be required to- include a description of more than it chooses to include.

The remaining portion of the motion reads: ‘ ‘ Third — ■ Defendant also asks that the court dismiss said action and petition, for the reason that the plaintiff has not the legal capacity or right to appropriate said property, and the petition is not in accordance with the statute in said proceedings.”

The court did not err in overruling that clause of the motion. We think the appropriation sought,.as set out in the petition, is an appropriation authorized by the statute, and that the petition sets out all that the statute requires. A demurrer was filed to the petition, and we think that was properly overruled for the same reasons which justify us in saying that the entire motion was properly overruled.

The action of the probate court is complained of because of its rulings in the admission and rejection of evidence, and attention is called to the fourth page of this record, in which this question was asked of Schaible. Schaible himself was upon the stand. He had preceded this by testifying that he had put in a large amount of tile drainage, something like twelve miles, on his farm, and he was then asked, ‘1 What has been the expense of this tile, if you know?” Objection was made to that, and that objection was sustained, and we think properly .sustained. To have permitted that to be answered would have been like permitting one to answer that his farm costs so much, he paid so much for it, as fixing the value of it; or he paid so much for the barn he put upon it. To determine the value of that farm, it was proper to show that the farm was properly underdrained with tile, but not to follow that by showing what such tiling cost.

Isaac Straw was upon the witness-stand, and his testimony is found on page 24 of the record. I read from the record a part of his examination. He was a witness put upon the' stand by the property owner, and he was being cross-examined by the counsel for the railroad company, and' was asked, “Wotfid it not be 'an advantage instead of a detriment to that farm, to have a bridge constructed over that railroad?” Whatever may be said as to what the measure of damages should be in a case like this, it seems to us it was perfectly proper in cross-examination of that witness, to ask him if it would not be an advantage instead of a detriment to that farm, to have a bridge constructed over that railroad; and that too, with out reference as to whether this was :a case in which incidental benefits might be off-set against incidental damages as affecting the amount of recovery. That question, it seems to me, certainly was proper. But ■the answer given by the witness was such that nobody, certainly not the property owner was prejudiced by the answer, if the question ought not to have been asked. The answer was, “I do not see any benefit to the farm in having a bridge there. The people that occupy the farm wrill have the benefit in common with the whole community to travel that road.” So there was no prejudice to' the plaintiff in error by the answer, whatever may be said about the question. Then there was asked of the same witness in this cross-examination: “How is it a damage to the farm, to have a bridge built in the highway?” The question, we think, as testing the value of that witness, was proper. And that is true as to the next question: “Don’t you say it is an advantage to have that bridge built there, instead of having it it is now ?” We think, as cross-examination, that was clearly -proper. The same question is raised at the bottom of the '25th page of this record: ‘‘What do you say; would the ..construction of the bridge as proposed, be an improvement .over the present situation, as far as that land is concerned?” For the reasons already given, we think that was proper. '.On the 26th page, this question was asked: “Would it not be better to have a bridge?” Objection was made, overruled and exception taken. It was answered, ‘ ‘ I suppose the public want some way to get across there.” We think ¡the question was proper, without reference to the answer, ;but certainly no one was prejudiced by the answer.

J. 1VL Hecock was examined as a witness by the defendant, and as shown on the 76th and 77th pages, was being .cross-examined by counsel for the railroad company, and this question was asked him: “I am asking, leaving out the fact that there is to be a grade, as you say, in front of the gate, and in the present highway, leaving that ont, and would it hurt anything to construct the bridge over the railroad?” For the reasons given to the other questions, we think that was proper; then follows this question: “If there was a bridge across that place and not interfering with the road, it might be an advantage to the place; of course, it would, would it not?” “If there was a bridge across that place and not interfering with the place, would it not be an advantage instead of a detriment?” For the same reason as given before, we think these questions were proper.

C. H. Heighten was being examined as a witness for the railroad company, and on page 117 of the record, he was asked by counsel for the railroad company, “What do you say would be the fair market value of that piece of land situated where it is, and what I have called your attention to, per acre?”

‘ ‘ A. Referring to the whole farm V ’

Q. No; just that piece.”

Now, there was an objection to that, and that was overruled, and the defexidant, the land-owner, excepted to that.

We do not see that there was axry error in permitting that to be answered. Then followed this: “What do you say would be the fair market value of that piece of land where it is, that I have called your attentioxi to, per acre?” He answered, “I should not place it over $100.00 an acre.”

I shall speak of those things which perhaps were in the mind of counsel when the objection was made, and exception taken. Oxx page 131 of the record is this question: “Taking the farm just as it is situated and all the surroundings, what do you say would be the fair market value to-day, per acre?” The witness now is Phelon — he was put upon the stand as a witness for the railroad compaxxy. Perhaps as well here as elsewhere the questioxx may be discussed, as to the time at which the estimate of the value of the property is to be fixed.

This is'the way this record raises the question: It appears that before these proceedings in court to appropriate were commenced, the railroad company had graded in the public highway in front of the premises of Schaible, and it is claimed that this grading had reduced the value of these premises; and so, when the railway company seeks to appropriate the land adjacent to that highway, the question is raised whether the value of the land not to be appropriated, but adjacent to such land is to be fixed as it was — I mean as the situation was before the railroad company did anything, or whether it is to be fixed as the situation was at the time the proceedings in the probate court were commenced. It is raised in this question of evidence, and it is raised in the charge of the court to the jury.

It is argued that to permit the railroad company first to have done excavating, to have done that kind of work in the public highway in front of these premises, before it commenced any proceedings in court to appropriate, and thereby reduce the value of the land, and then permit the company to commence their proceedings to appropriate, and fix the value of the land as that value was because of such work in the public highway, would be an injustice to the land-owner, and there seems to be force in that argument; and it seems to me it would be unreasonable if there was no means by which the land-owner could be compensated, in some way, for what other injury he sustained. The case of Lyon and Wife v. The Green Bay and Minnesota Railway Company, reported in 42 Wisconsin, is cited, beginning at page 538, as supporting the proposition. In that case, the railway had constructed its road across the lands of Mrs. Lyon; the lands were used for a cranberry marsh; the road was put through this land, and in putting it through, it had cut off the water supply to one-half of the land. It left, as I remember, about two acres and one-half on each side of the railroad. It is necessary to have a cranberry marsh very wet; by reason of that construction of the road the marsh on one side of the track was left too dry for the purpose of raising cranberries, and the court held that in that proceeding to appropriate, which was taken after the construction of the road, the effect upon the property adjoining the railroad by reason of constructing the road might be taken into consideration — the effect which had already been produced before the proceedings in court were commenced, should be taken into consideration by the jury in that proceeding. We think that case is to be distinguished from this case; but whether to be distinguished or not, take this case as it is, and it does not seem to us that in Ohio the rule is such that you can take into account the value of the property other than it is when the proceedings are begun so far as the property'appropriated is concerned. Now, here the property to be appropriated it 'seems is 80-100 of an acre, a fraction less than a third of an acre. Now, it is said, if you let them appropriate that third of an acre, you must take into the account in assessing the damages, the damages that will come to the adjoining property; the injury that has already been done by the railroad company in front of this land-owner’s property, and it is said that it is manifest that they are going to use the public highway in front of this property. Numerous authorities are cited to us to show that the land-owner’s interest in the public highway, even though the title or fee is in the public, is still his property. I do not know how it happens, but from 'the way the case was argued and what 1 see of the evidence, it seems that the fee in the highway in this case is not in the land-owner; but however that may be, it is settled in this state beyond any question that the right which the abutting owner has in the highway is his property. We are cited to the 7th Ohio St. and numerous other authorities later in Ohio, on that proposition. Here they are not seeking to appropriate anything in the highway — the company is seeking to appropriate a particular thing, and nothing else. If it goes on and does work outside, I cannot understand how this appropriation can prevent the land-owner from recovering whatever damages he suffers thereby. If he suffered before this appropriation was commenced, I do not understand why he may not by proper proceedings compel an appropriation and save himself. So that it seems to us that it was proper for the court to try this case, charge the jury, and take evidence upon the theory that so far as this case was concerned, the appropriation of the laud sought to be appropriated, and the injury to the remaining property by reason of that appropriation and the use to which this property.was to be put, was all that was to be considered. With reference to the questions put to the witnesses we will rest here, although I have not called attention to each objection. I think I have covered all the ground made upon rulings as to the admission of evidence. I will call attention to some of the language used in the charge. On page 106, the court uses this language: “The difference in the value of the 'owner’s property with the appropriation and that without it, is the rule of compensation. This difference, must be ascertained with reference to the value of the property in view of its present character, situation and surroundings. It must not be enhanced by proving facts of a contingent -or prospective character.” What I have already said in relation to the questions made on the admissibility of evidence gives the ground upon which we hold that- it was not error for the court to use that language. It seems as though the fact that the railroad company instituted proceedings in the probate court under the statute for an appropriation and assessment of damages would in no way affect the land-owner’s rights as they existed by reason of damages for any trespass that had been caused by the railroad before that. In the Wisconsin authority cited,-the court said as to the situation in that case, that the whole matter might be gone into, to avoid having several suits for the same thing; but there the damages resulted from the use to which the railroad company had. already put the land appropriated, and the necessary result from that; whereas here, the thing complained of is the use to which the railroad company will put the highway wliich they do not appropriate.

Quite a number of requests to charge the jury were made. Perhaps I ought to call attention to the requests which were made and which the court gave, and to those which were asked and refused. The court gave this to the jury upon the request of the railroad company: “The plaintiff, the railroad company,has the right in case of necessity to change the course or location of the public highway, and no damages can be awarded the defendant because of any proposed change in the highway. ” Now, that was the fifth request made by the railroad company. There is nothing in the appropriation proceedings which includes the highway. I know it is argued that it ought to have included that highway, and to do the thing, which they proposed to do with the land they do appropriate, they must do something in the highway. But it seems to us that a distinction is to be made between this case, which' seeks to appropriate certain lands adjoining the highway, and a case where the abutting land-owner’s rights in the highway are sought to be appropriated in connection with the appropriation of the abutting land. The sixth request was not given as requested. The language of the request is: “If the jury should find that any incidental damages will accrue to the lands of the defendant, not appropriated, the jury should take into consideration and estimate any incidental benefits that will accrue to the defendants from the construction of the work proposed, not common to the public at large, and the amount of such incidental benefits should be deducted from the amount of such incidental damages.’’ The court as to this said: “I shall not give that just as it is here. If there are incidental benefits connected with local incidental injuries, that in a proper case, might be considered; but I do not think you can set off general incidental ( benefits against general incidental damages.”

Weber & Stroup and H. W. Ingersoll, for plaintiffs.

E. Cr. Johnson, for defendant Company.

With this modification there was no error to the prejudice of the land-owner in giving it. The seventh request the court gave: “In considering this case, you cannot take into account in estimating compensation or damages to be awarded the defendant the fact, if such be the fact, that in the construction of the proposed improvement, it may be necessary for the plaintiff to make an alteration in the course or grade of the highway. ” For the reasons already given, it seems to us that was proper. The eighth request was given: “No damages or compensation can be awarded the defendant because of any anticipated change, alteration or occupation of the highway, or any portion thereof, by the plaintiff in the construction of the work proposed.”

This action was for an appropriation of lands adjoining the highway. Certain work was to be done by the company upon the lands appropriated. Whatever effect this work to be done on the lands appropriated would have upon the value of the remaining premises of Schaible, was to be taken into the account in assessing his damages; but any alteration which the company might propose to make in the highway certainly should not have been considered in this case. If the company makes such use of the highway in front of his premises as to destroy or lessen the value of his property rights therein, I do not understand that this case would be any bar to his obtaining proper relief therefor.

Entertaining these views, we think.the request under consideration was properly given to the jury. Our conclusion, therefore, is that there was no error committed by the trial court, to the prejudice of the plaintiff in error, and the judgment is affirmed.

John P. Delphey and A. W. Eclcert, for plaintiff in error.

W. H. A. Bead, for defendant in error,


source: Caselaw Access Project

author: Swing, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O., Circuit Court.
    Jan. Term, 1895.)
    Before Swing and Smith, JJ.
    ROGERS ET AL. v. CORRE.

      Agent — Money received for principal’s illegal enterprise — Agent’s note to principal for money tied up in the deal not enforceable. — While the courts will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to the master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.
    D., an agent of C.,was engaged with C. in a wheat gambling deal at Chicago. While the deal was in progress, D., being in Cincinnati, was induced by threats of prosecution, to execute his note to C. for the money C. had furnised for the deal. On suit on the note, held, C. can not recover on the note. If 'D. had had the money in his possession at the time, he could not retain it from C. But the deal still being in progress at the time, and the money being in the deal, and not in D. ’s possession, the note was a gambling transaction, given in furtherance of the gambling transaction, and therefore not enforceable at law.
   Swing, J.

This case is here on error to the judgment of the Superior Court of Cincinnati.

The action there was on a note. It was tried before a jury and judgment was rendered on the verdict for the plaintiff.

One of the defenses to the action was that the consideration was founded on a gambling contract, and was therefore void. Upon this issue the plaintiff asked that the following-special charge be given, and which the court gáve. The charge is: “If you find that Corre put the money in Davis’ hands to be used for illegal gambling in wheat, still Corre would have the right to recover this money back from Davis at any time before Davis had lost it. And if Davis had not lost the money at the time he gave the note of September 27,. 1890, then the note was for a good and lawful consideration, and was not illegal under the Illinois or under the Ohio Statutes against gambling.”

The evidence before the jury to which this charge was applicable, tended to show that Corre had furnished money to Davis with which to gamble in wheat in Chicago. That the parties met in Cincinnati, and a controversy arose between them over what was denominated the “deal.” Davis represented to Corre that the deal was not closed,but was still on, and would likely result in a profit. The evidence, still further tended to prove that Davis was threatened with prosecution in the matter, and to avoid arrest was induced to give the note in question.

It seems to us that this charge is wrong. It certainly does not come within the principle of the law as laid down in Norton v. Blinn, 39 Ohio St. 145, which case is relied upon by the defendant in error as sustaining it.

In that case Norton had received $500 from Blinn to invest in a gambling transaction, and he had made a profit of $325.00 on the venture, thus giving him in all $825. This money Norton refused to turn over to Blinn, and defended on the ground that it was a gambling contract. In his opinion McIlvaine,J.,quotes with approval the following from Wood on Master and Servant: “While the courts will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to the master, he is'bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.”

This is clearly the law, founded as it is upon justice and reason. But it does not seem to us to fit this case. The charge says that admitting that it was a gambling contract, that the consideration was a good one provided the money had not been lost. And the evidence before the jury to which this applied was to the effect, that Davis and Corre were engaged in a wheat gambling speculation in Chicago, Corre furnishing the money and Davis placing it. The money had. been placed, and the deal was still running, and the gambling, if such it was, was in progress.

Davis did not have Corre’s money, or any part of it. It was up in the deal, and yet it was not lost, or possibly it would be better to say, not positively known to be lost.

If Davis had had Oorre’s money in his possession, either before the deal had been inaugurated, or after it had been closed, it would be against good morals that he should be permitted to retain Corre’s money. But here Davis did not have Corres’ money, and that the money is not lost, is not equivalent to having it. In our opinion, the evidence to which this charge applied tended to prove that Davis, acting as the agent of Corre, and Corre were engaged in a wheat gambling transaction. The deal was in progress and not closed, and while the money was not known to be lost, it was not in the possession of Davis, but was up on the deal; and a note given by Davis to Corre for his interest in this transaction is a gambling transaction in furtherance of the original enterprise, and is not enforceable at law, and does not fall within the principle of Norton v. Blinn, supra.

We are further of the opinion that the verdict is against the evidence as to the knowledge of the parties as to the character of this transaction. For these reasons the judgment will be reversed, and the cause remanded to the. Superior Court for further proceedings.


author: Jenner, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Baldwin, Caldwell and Jenner, JJ.
    GROSSMAN, ASSIGNEE, v. WENHAM.
    1. If a dealer largely indebted, proposing to purchase goods, states 'the facts truly, and goods are then sold to him on credit. The title passes, and no subsequent fraudulent acts will divest him of the title, and re-invest it in the seller.

      2. A grocer largely indebted purchased of a wholesale dealer, goods of an amount and quality suitable for retail in his business, and placed them in the original packages in his store, with like packages bought from other dealers. Such act was not a wrongfully intermingling of goods so as to justify the seller in taking all the unbroken packages, because he was unable to identify the ones he had sold.
   Jenner, J.

(orally).

This case is before the court on certain assignments of error claimed to have occurred in the trial below. The petition in replevin is in the ordinary form. The answer of Grossman, assignee of Weitz, is a denial that the Wenhams were owners of the property described in the petition. He further answering says that under color of the writ of rejfievin plaintiffs below took property not described in the writ; and property of which they were not the owners. And he sets forth a schedule of property that he claims was so taken, and which they had no legal right to take under their writ, because they were not the owners of it.

The reply and the amendment to the reply admits that plaintiffs took the property under color of the writ of replevin, and avers that all the articles and property seized by the officer and delivered to the plaintiffs, in fact belonged to the plaintiffs, or was so wrongfully intermingled with the defendant’s property, that they could not distinguish and separate their own; therefore they had a right to take all.

There was a motion filed to make the reply more definite and certain, which was sustained; and a motion to strike out, which wsa overruled.

We think no prejudice resulted to the defendant below by reason of the overruling of said motion.

There was also an offer by plaintiffs to confess judgment before the case was tried, in the sum of $312, which was not accepted. The parties went to trial, and it is claimed by counsel for plaintiff in error that by reason of that offer he is entitled, to a judgment for the sum of $321. We do not understand that to be the law. The offer to confess a judgment has only this effect: If a sum less than the amount offered had been recovered by the defendant below, the costs made after the offer should have been taxed against him; if he had - recovered a larger sum, then all costs should have been taxed against the plaintiffs.

There are ten assignments of error, all covered by these: The court erred in the admission of evidence and the exclusion of evidence; in its charge to the jury; in refusing to charge as requested, and that the judgment is contrary to the law and the evidence. I must briefly refer to a portion of the testimony.

Weitz was engaged in carrying on a grocery store in Cleveland, from March 1st to October 9th, 1890, about six months. He had purchased a small stock of goods from the former occupant of the same room, and before doing so, he called upon Wenhams and consulted them about the value of the stock which he subsequently purchased. It appears further that before he made any purchase of goods of Wen-hams, they inquired what means he had to conduct business, and he said he had about $650 in money of his own, and could borrow about $350. It is admitted he purchased goods of Wenhams up to the time of the assignment. The aggregate amount purchased was about $1,400. This was paid except $500, at the time he made the assignment. He also owed his father-in-law $250, as he says, for which he, on the day before the assignment, executed a mortgage. He says he also owed another man $100, for which a mortgage was delivered.

When the Wenhams instituted their action in replevin and the constable took possession of the store in the presence of two clerks of the Wenhams and another party, they took the goods claimed to belong to the Wenhams, and removed them to Wenhams’ store, and there appraised or invoiced them.

The question arose on the trial as to how the valuation should have been made. The contention of defendant was that they ought to have been appraised at what they were worth at retail in the store; the other side insisting that was not the rule. It seems that the wholesale profit is about 8 per cent., the retail about 15 to 18 per cent.

This question was put to a witness: “You may describe to the jury the character and condition of' the goods. ” And the witness proceeds to do this, and says: “I don’t think they were worth over 50 or 60 per cent, of the original wholesale price. ’ ’

It is said the rule must be what the goods were worth to Weitz in his store. We understand this to be the rule: it is the marked value all the time. They were not worth to him the retail price until he had sold them at the retail price. The goods were only worth to him what he could go into the market and buy the same kind of goods for and place them on his shelves. It is all the time the market value at the time and place named that must determine the value.

The important legal question discussed was this: what is the rule when goods are intermingled ? Can an innocent party, if unable to separate his goods from those with which they have been wrongfully mingled, take all the goods so mixed and intermingled ? What is the rule, even though one of the parties might be a wrong-doer? In 107 Mass. 123, the syllabus reads: “If a mortgagor of goods mixes them, purposely or carelessly, with his own, and sells the whole, the mortgagee can replevy the whole from the purchaser in the absence of evidence to distinguish the mortgaged goods from those not mortgaged.”

In 30 N. J. Equity, 291, Jewett, reeciver, against Dringer and Bowman, this is the first proposition of the syllabus: “If a party having charge of the property of others, so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produced it, and it is for him to distinugish his own property, or lose it. ” That seems to me to be a reasonable rule.

In American Decisions, 627, Hasseltine v. Stockwell, the syllabus is as follows: “Confusion of goods has taken place when there has been such an intermixture of goods owned by different persons that the property of each can no longer be distinguished.” And .again, “but there is no forfeiture where the admixture has been made without fraud, nor even in case of fraudulent intermixture where the goods mixed are of equal value. In the latter case each owner takes his proportion of the whole. ’'

In the 54th American Decisions, 582, it is said: “Confusion of goods is such a mixture of the goods of two or more persons that they cannot be distinguished.”

And on page 591, “the civil law gave the whole property to the party who made the intermixture; but he remained liable in damages for the value of the goods taken to the party whose goods he had intermingled with his own. Here is a manifest encouragement of fraud, and the common law rule was directly the contrary, and gave the whole property to him whose property was first invaded, without any compensation to the wrong-doer. The severity of this rule has been modified, and it is now the rule that even where the mixture is wrongful and fraudulent, yet if the mass is composed of parts which are of equal quality and value, and if the proportion of the whole which each party originally owned is known, the parties will be tenants in .common, and each be entitled to his proportion. But although the tenancy in common is conceded to exist here, the rights of the parties are by no means equal. Every intendment and presumption is against the wrong-doer. The burden of proof is upon him to establish his right, otherwise the innocent party, who is to be protected at all event, will take the whole of the inseparable mass.”

Encyclopedia of Law, 1st volume, page 57, cites numerous authorities, to this effect: “Where one has confused his own goods with those of other persons, two things are requisite, namely: that the confusion be made fraudulently, and that after such confusion the articles b'e incapable of identification or apportionment. “Where the materials can be distinguished, there will be no forfeiture, and each party may claim his property.”

We understand the law to be as above stated; and in the light of these authorities we will look over a few pages of this record. I have stated what Weitz says as to the amount he had put into this business. I turn to the testimony of the constable, who was the agent of the law, and who had this writ of replevin. He was inquired of as to how he did this work.

Q. Isn’t this in fact the way the thing was done, that these men who went with you said: “This is our stuff;” handed it down, and you assumed it was called for by the writ, and took it? A. Yes.

Cb That’s the way the work was actually done? A. Yes.

On page 50 these questions were asked of a clerk of the Wenhams:

Q. You may state, Mr. Hesoun, what was done there; whether the constable had a writ describing the goods. A. Yes; he took us to take the goods that belonged to us.

Q. What did you do? A. We started in and took what we thought belonged to us.

Q. What you thought was covered by the writ? A. Covered by the writ, yes.

Q. What do you mean by the expression “what belonged to us?” A. I mean the goods we had sold to Weitz.

Q. Who took them down from the shelves ? A. I took them down, and Keller took some down, and Eichhorn copied them as we took them out, every item and every pound of goods that went out of the store.

Q. You took all of the soap of the kind that Uditzki sells? A. Yes.

Q. Did you take all the spices yon found there? A. Yes.

Q. Do you know whether Mr. Weitz had been buying spices of Stephen & Weidlar? A. I don’t know a thing of the kind. I said we took the spices; we didn’t know whether they were from Stephens & Weidlar or not.

Q. Are there not various people that deal in the same brand of soap as you do? A. Yes, every house in this city has about the same kind of soap.

Q. You bought them from other people? A. Yes.

Q. These same people sell others here in the city? A. I presume so.

Q. You took all the extracts there were there, didn’t you? A. Yes.

Q. How is it about olive oil? A. Olive oils are sold by us.

Q. They are sold by other people, too, aren’t they? A. Yes.

Q. The same brand ? A. Yes.

Q. You took all the olive oils that were there? A. Yes.

Q. You may state whether you could tell by examining these goods whether they were not from Wenham’s store? A. I could not say that at all.

Q. Could you some of them? A. Yes, I could, some with Wenham’s name on, 1 could tell them; but all these different wholesale houses handle these same goods pretty much.

Q. Did you take any goods there that Wenham & Co. didn’t sell? A. No, sir.

Q. Did you know of Weitz buying goods of anybody else except Wenham’s sons? A. No, sir, I didn’t.

Uditzkysays he sold them boxes of soap, and found eight boxes of soap there just before the assignment, and subsequent to the assignment it was all removed.

Now, what is the charge of the court? You will find on page 270 the following: “I am asked by plaintiff’s counsel to charge you that if you find that the constable took the goods, and further find that such goods were willfully so intermingled with such goods of the same line belonging to plaintiffs, that the defendant cannot recover the value of the goods so intermingled and taken. That I will charge you, and further I say, if you further find that said goods were so wrongfully intermingled with the goods of the same kind that plaintiffs could not identify their own goods, defendant cannot recover damages for the goods so confused and intermingled and taken by plaintiffs.”

White, Johnson & MoCaslin, for plaintiff in error.

E. W. Goddard, Esq., and Boynton & Horn, for defendants in error.

Is that the law? If the plaintiffs sent clerks who could not distinguish the goods, then they may take all they find, including what other wholesale dealers may have sold to this man. They can ¡¡take the plaintiffs’ boxes, and those sold by other parties, because the goods were intermingled, 'and that ends the matter. We do not think that is the law. We do not think they could go in there and take everything without any reference to what was in their writ, and without reference to whether it was paid for or not.

There is also this evidence: Wenham called on this assignee after he was appointed and in charge of the stock, and enquired of him as to what condition things were in. The assignee told him that he thought there -was plenty of goods there to pay all the liabilities.. That -was objected to and excluded. Why? It is between the parties to the cause talking over this particular business immediately before the replevin suit. We think it was competent. That is the only evidence we hold there was error in excluding. For these reasons we reverse this judgment for error in excluding evidence in the charge as given, because it is against the evidence.


author: Scribner, J.

text:
    (Sixth Circuit.—Lucas Co., O., Circuit Court
    Jan’y Term, 1895.)
    Before Scribner, Haynes and King, JJ.
    C. VANDAL v. JOHN DAIBER.
    Section 6489 of the Revised Statutes of Ohio, (An. 88, O. L. ¿78), the justice of the peace attachment act — is notaTimitation of sec. 5430,p. 6 — (the three months’ earnings exemption law) when on motion to dissolve attachment it is shown that the excess of the three months’ earnings, over §150, is also necessary for the support of the debtor’s family, and demand of the same therefor. Upon such showing the debtor is entitled to hold exempt from the attachment both the §150 and the remainder of the three months’ earnings as well, whatever the amount.
    It is not necessary that a definite amount of said three months’ earnings in the hands of the garnishee be made to appear, in order to entitle the debtor to a dissolution of the attachment.
   Scribner, J.

(orally).

John Daiber, the defendant in error, on the 8th day of-October, 1894, brought an action against H. O. Vandal, the plaintiff in error, before a justice of the peace of Port Lawrence township, Lucas county. His action was based upon an account, amounting with interest to $52.50. At the time of the commencement of his action he filed an affidavit for an attachment, in which he stated, after making the usual averments, “that the property to be attached is not exempt from execution, and is the personal earnings of the defendant for services rendered by him within three months prior to the commencement of this action,but that said earnings so earned amount to more than $150, and only the excess over that sum is sought to be attached; that the obligation herein sued on was contracted in Lucas county, Ohio.” And after making oath that the defendant is a non-resident of Lucas county, he says: “I further say, on my oath aforesaid, that I have good reason to and do believe that the Lake Shore & Michigan Southern Railway Company is indebted to said defendant, and has property, moneys and rights in action, of the said defendant, in its possession or under its control, subject to be attached in this action.” Process was issued in the case. The summons was returned not served, as the defendant was not liivng within the jurisdiction of the court; and as to the attachment process,the officer made this return:

“Received this writ October 8, 1894, and by virtue of its order I could not come at the property alleged to be in possession of the Lake Shore & Michigan Southern Railway-Company, garnishee; and same day, at four o’clock P. M., I served the Lake Shore & Michigan Southern Railway Company by delivering to A. P. Carter, Chief Clerk at Toledo for said company, a true copy of this order and writ, and a written notice to appear and answer, etc., a copy of which notice is hereto attached. Defendant not served; not found in my jurisdiction.”

The record does not show that the garnishee, the railway company, ever appeared and answered in the case. It seems to have entirely disregarded the process of garnishment which had been issued and served upon is chief clerk in the manner above stated. But it is quite doubtful whether this return of the officer shows a proper or sufficient service upon the company. The defendant, however, filed a motion to discharge the attachment, insisting that the allegations contained in the affidavit as to the grounds for the same were untrue; also, that the defendant was a married man; that lie was the support of a family, depending solely on his personal wages and earnings; that his personal earnings within three months prior to the commencement of this action were necessary for the support of defendant’s family, and that the earnings herein attached were so necessary. He filed several affidavits in support of this claim,in one of which his wife joined, alleging that the monies attached were the personal earnings of the defendant,“and were necessary for the support of the defendant’s family. ” He demanded in due form that these earnings be set up to him as exempt from attachment.

On October 20, 1894,this motion to discharge the attachment, especially so far as it concerned his personal earnings earned within three months next prior to the commencement of the action, was heard. The affidavits were submitted to the justice of the peace, and considered by him. He overruled the motion to dismiss the attachment, except as to all earnings accrued within the three months next prior to the commencement of the action that were in excess of $150. The justice adjudged: “And the garnishee is hereby ordered to pay into court such amount of the wages of defendant now due as may be in excess of $150 earned during the three months next preceding the time of the issuing of the attachment herein.” To which ruling the defendant excepted, and- took and filed his bill of exceptions.

The defendant below subsequently filed in the court of common pleas his petition in error to reverse this order of the justice of the peace overruling his motion to dismiss the attachment. Upon that petition in error,the order and judgment of the justice of the peace was affirmed, the court holding that no error appeared in the record of the proceedings before the justice of the peace. To reverse the judgment of the court of common pleas affirming the judgment of the justice, and also for the purpose of reversing the judgment of the justice of the peace overruling his motion, this petition in error is filed.

As I have already stated, it nowhere appears in the record of the justice of the peace, except in so far as it is averred in the affidavits of the plaintiff and defendant below and his wife, that the garnishee,the Lake Shore & Michigan Southern Railway Company, was indebted in any sum to the plaintiff in error here, the defendant below. The affidavit of the creditor, as I before read, states “That the property about to be attached is not exempt from execution, and is the personal earnings of the defendant for services rendered by him within three months prior to the commencement of this action, but that said earnings so earned amount to more than $150.” The plaintiff below therefore directly avers and swears that the garnishee, the railway company, was then indebted to the defendant in the proceeding in more than $150, and that the amount for which the company was so indebted was for the personal earnings of the defendant, but that the plaintiff in the proceeding seeks only to reach such sum as shall be in excess of $150. It is not stated, however, what such excess is. There is no finding by the justice of the peace as to how much there is due from the garnishee, or whether there is anything due; but the justice says that he sustains the attachment as to whatever excess beyond the $150 of the earnibgs of the defendant there may be in the hands of the railway company. But as the company fails to answer, and really seems to pay no attention to the proceeding, and as it is questionable whether the return of the officer shows that it was properly served with garnishee process, we have really nothing definite nor certain showing that there is any exact amount due from the company to the defendant in the action. As the case stands, there is a judgment of the justice of the peace overruling the motion to dismiss the attachment as to the amount of earnings that may be in the hands of the company beyond the sum of $150. So that,if in fact it shall thereafter be found that the debtor has any money in the hands of the railway company in excess of $150, „it would seem to be effectually tied up by this proceeding.

It is insisted that upon this state of the record the judgment of the justice of the peace reaches nothing, affects nothing, and binds nothing. It is true that the garnishee has not answered; but suppose that it should waive the defect in the serivce of the garnishee process, and answer and deny that there is any sum whatever due the alleged debtor or defendant in this porceeding ? Such an answer or denial' on the part of the garnishee would not preclude the creditor from proceeding in the action against the debtor and recovering judgment therein, and then bringing suit directly against the garnishee, alleging that notwithstanding its denial in the attachment proceeding that there was anything due from it, in point of fact that there was something due. In such action brought by the creditor against the garnishee, after having recovered his verdict against the debtor, if he could establish that the garnishee was in fact indebted to the debtor at the time his proceedings were instituted, he would be entitled to maintain his action and enforce his claim against the garnishee to the extent of his recovery, under the statute in force at that time. These provisions are found in section 5430,Rev. Stat., subdivision 6 of which provides:

“The personal earnings of the debtor, and the personal earnings of his or her minor child, or children, for three months, when it is made to appear, by the affidavit of the debtor, or otherwise, that such earnings are necessary for 'the support of such debtor, or of his or her family; and such period of three months shall date from the time of issuing any attachment or other process, the rendition of any judgment or the making of any order, under which the attempt may be made to subject such earnings to the payment of a debt.” Shall be exempt from execution, attachment or sale, for any debt, etc.

By section 5433, Rev. Stat., it is provided:

‘ ‘ The provisions contained in this subdivision with respect to exemptions shall apply to all courts in this state, including justice of the peace and mayors’ courts, so that a person shall be entitled to all the exemptions in any case or proceeding or before any court or officer that he may be entitled to in any other case or proceeding, or before any other court or officer. ”

There is contained in vol. 88 of the statutes, at page 278, paragraph 9, an amendment of sec. 6489 relating to exemptions, providing as follows:

■ “* * * and no attachment shall issue by virtue of this chapter against the personal earnings of the defendant for services rendered by such defendant within three months before the commencement of the action or the issuing of the attachment, unless the defendant is not the head or support of a family, or unless the amount of such earnings exceeds one hundred and fifty dollars ($150), and then only as to the excess over the amount.”

This exemption limitation to the right to withhold $150 is .found only in the justice’s act, and it will be observed that it applies only where the defendant is the head or support of .a family; that is to say, if the defendant is the head or support of a family, he may have the exemption, but this exemption is limited to $150; whereas, in the general statute which I have read, the provision relates to personal earnings that are necessary to the support of such debtor or his family. Where that is the case; where it appears by a proper showing that the personal earnings of the debtor are necessary to his support and to the support,of his or her family, the entire earnings for the period of three months are exempt; whereas, the provisions of the justice’s act, protecting earnings to the extent of $150, applies to the case where the debtor is the head or support of a family, and if he be the head or support of a family, he is entitled to the $150 -exemptions, whether the same is alleged to be necessary to the support of his family or not. Where, under the other ■provision, it is found that the earnings are necessary for the .support of the family, then the statute exempts all his earnings for the three months prior to the commencement of the .action, whether they be more or less than $150.

The plaintiff in error, defendant below, makes out a clear • case for the application of the provisions of sections 5430, and 5433, and if it appears in the record that there were earnings in the hands of the Lake Shore Company, sought to be held by virtue of the garnishee proceedings against the Lake Shore Company in this action, then, under the affidavits which the debtor and his wife have made, he is entitled to^have exempt from the attachment proceeding the entire ..amount of his earnings made during the three months prior to the commencement of the proceedings. Does the fact that it does not affirmatively appear in the record that there is any specific amount of earnings in the hands of the company, deprive him of the right to have the attachment dismissed as to the earnings alleged in the affidavits of the plaintiff and defendant to be in the hands of the company? If any earnings have so accrued, he is entitled to the protection of the statute; if no earnings have accrued, and if none are in the hands of the company, the garnishee, then no harm is done; but keeping in view the fact that notwithstanding the failure of the Lake Shore Company, the garnishee, to answer, there may nevertheless be money in its hands earned by this debtor within the three months prior to the commencement of the action; that in the event of any such earnings being found in the hands of the company, he is entitled to have them discharged from this attachment; and keeping in view the further fact that even if by answer the garnishee should deny that there is anything in its hands belonging to the debtor, the creditor may nevertheless pursue ..the garnishee and recover judgment against him for whatever he may be able to show is in its hands, it seems to us that upon the proofs submitted in support of the motions, the order of attachment, in so far as it affects the earnings of the defendant in the action,should have been discharged.

The judgment of the court of common pleas will be reversed, and the case remanded to that court'with instructions to reverse the order and judgment of the justice of the peace denying the motion, and ordering the attachment, so far as it covers the earnings mentioned, to be discharged.


author: Laubie, J.

text:
    (Seventh Circuit—Mahoning Co., O., Cir. Ct.
    March Term, 1895.)
    Before Frazier and Laubie, JJ.
    W. A. GRANT v. PITTSBURGH AND WESTERN RY. CO.
    1. Plaintiff, a brakeman, for the purpose of going ahead of his train to throw a switch and turn the train onto a side track, stepped from the front of the pilot of the advancing engine to the center of the track immediately in front of such engine,[and slipped and ■ fell, and was run over by the engine and injured. Held: that plaintiff cannot, in such, case, call witnesses to prove that brakemen would, or did, usually perform the same work in the manner the plaintiff had attempted to perform it.
    2. In negligence cases, whether the plaintiff was guilty of contributory negligence is ordinarily a question of- law and fact, but it may be one of law only. The rule is that if the plaintiff has given some evidence tending to prove every fact necessary to a recovery, the question must be submitted to the jury, unless all the material facts as to the plaintiff’s duty and conduct are certain and undisputed, and admit of no reasonable inference but that of negligence; in which case the question is one of law only, and should not be submitted to the jury.
    3. The doctrine that a plaintiff who, in trying to avoid an impending danger brought upon him by the negligence of the defendant, pursues a wrong course and is injured, when he would have been safe had he acted otherwise, is not chargeable with contributory negligence if he believed, upon reasonable grounds, that in so acting he would escape injury, is not applicable to a’ case like this, when the plaintiff unnecessarily and of deliberate choice, adopted a reckless method of doing the work, when a safe course was open to him, and known. If such doctrine does apply, as the plaintiff was not asked, and made no statements as to his belief in regard thereto, when testifying as a witness in his own behalf, it must be presumed that he did not entertain such belief.
   Laubie, J.

This proceeding is brought to reverse the judgment of the court below, rendered in favor of the defendant, by the court taking the case from the jury at the conclusion of the plaintiff’s evidence, and dismissing the petition. To that action of the court below the plaintiff took an exception, and brings upon the record, by a bill of exceptions, all of the evidence that was given in the court below to the jury, includng exceptions to the exclusion of evidence offered by him.'

The action was brought by Grant to recover for personal injuries sustained bj him while in the employment of ‘ the company as head brakeman of a freight train. JHe stepped off, and directly in front, of a moving engine in order to go forward to turn a switch at the place in question, which 'was in the state of Pennsylvania, as his train, going east, had to take the siding at that point to allow another train, west bound, to pass. As he stepped off in front of the moving engine, his foot slipped off the tie he stepped on, and he fell, by reason, as he alleged, of the negligence of the defendant' in removing the ballast from between the ties at that point, and that the advancing engine ran over him, injuring him permanently.

During the progress of the trial the plaintiff called a witness, apparently as an expert, and put to him a hypothetical question, the object of which, as stated by counsel in argument here, was to prove that the plaintiff, on the occasion in question, attempted to perform the duty as it was usually done by brakemen in that business. So far as the question is concerned, it is sufficient to say that this is a mistake. The witness was not, and had not been, employed on defendant’s road, and after stating the facts of the case hpyothetically, which I need noUread, the question proceeds as follows :

“Under those circumstances, you may state to the jury what would be the ordinary and usual method adopted by railroad men in getting off and on trains, and opening that switch and turning that train onto the side track?”

The question called for the opinion of the witness as to what brakemen would do, and was properly excluded by the court. Now, the record further states that “thereupon the plaintiff, after the objection was sustained, proposed to prove by the witness, in answer to the question, that the usual and ordinary method then adopted by railroad brakemen for leaving that train for the purpose of reaching that •switch and throwing it, turning that train onto the side track, was to get out over the pilot of the engine and step off between the rails, and run forward to the switch; which the court excluded, and refused to permit the witness to answer, and refused to permit the plaintiff to prove -by the witness as above proposed, and plaintiff excepted. ’ ’

Counsel claim that this was an offer to show that the usual' and ordinary practice of brakemen in that business was to perform the work as plaintiff did it on the occasion in question — that he adopted the usual method in the business. Instead of that, the statement confines it down to that train and that switch — that it was desired to prove by the witness that the usual and ordinary method adopted by railroad brakemen for leaving that train for the purpose of reaching that switch, and turning that train onto the side track, was to get over the pilot of the engine, etc., as to which the witness could not testify, never having been on the train; nor was the offer broad enough, if the claim of the plaintiff’s counsel was correct, as a question of law, that they were entitled to show what the usual custom was among brakemen in performing work of that character, and under similar circumstances, in order to exonerate the plaintiff from the charge of negligence. But were it as counsel claim, we think the court ruled rightly, and that it was not competent, for the purpose of showing that the plaintiff was not negligent in the way and manner in which he performed the work, to show that others did so in the same reckless way. What careful, prudent men would usually do, under the same circumstances, is not ordinarily a matter of direct proof, but is one of inference from common knowledge of what the minds of such men would prompt them to do, of which the jury are as competent to judge as the witness; and when such inference is plain and unmistakable, as in the present case, it is immaterial that a ’class of men usually act in opposition thereto.

The main question that counsel rely upon in this case is in regard to the action of the court in taking the case from the jury. After the conclusion of the plaintiff’s evidence,a motion was made upon the part of the defendant to take the case from the jury and dismiss the petition,' and that was granted; and the question is,whether the action of the court was proper and legal.

Upon this question counsel for the plaintiff claims that if there was a scintilla of evidence upon each proposition that the plaintiff was required to prove to entitle him to recover, the case could not properly be taken from the jury by the court, and that it was error to do so in this instance, as such evidence was given. And upon this proposition a great many cases have been cited by counsel for plaintiff, who has evidently been very industrious in collating the decisions of the various states upon the point.

I do not propose to refer to the cases decided by courts outside of Ohio,because their name is legion, and it is hardly worth while to involve myself in- a labyirnth of cases, when our own Supreme Court has disposed of the question, and fixed the rule to be followed by the lower courts in this regard.

We do not dispute the proposition that ordinarily the question whether he plaintiff has been guilty of contributory negligence is a question of fact to be disposed of by the jury, under proper instructions from the court.

The question of negligence is not an abstract one in any given case. It is one which must be considered with reference to the relations of the parties litigant Contributory negligence consists, generally, either in an omission to perform an act which it is the duty of the plaintiff to perform for his own benefit or safety; or, in conducting a business or enterprise, or performing an act, without exercising that degree of care which the law requires him to exercise for his own safety. Such duty arises either out of an obligation of law, or of contract. Therefore, whether such duty rests upon the plaintiff, is a question of law; but while it is for the court to say whether the duty or obligation rests upon the plaintiff, yet its determination generally involves a question of fact, because such duty would, under certain circumstances, rest upon the plaintiff, while, if those circumstances were absent, it would not. Therefore it ordinarily becomes a question of fact for tbe jury to determine, under proper instructions from the court, whether those circumstances did actually exist so as to cast the duty upon the' plaintiff. If, for instance, the rules of the defendant employer required the plaintiff to perform the act in a .certain manner, and he chose to adopt a far more hazardous method, or, in the absence of such rules, if there were two methods equally open to the plaintiff for performing the act, one of which was a reasonably safe method, and the other an extremely hazardous one, it would be his duty to adopt the method prescribed by his employer in the one instance, or the reasonably safe method in the other; and if he chose, unnecessarily, to do otherwise, he would do it at his own risk.

The law, having a high regard for human life, and on the ground of public policy, requires every one to exercise care for his own safety, and it will not permit him to cast the whole responsibility for his safety upon others. But this wholesome rule is sometimes lost sight of, the result largely of the energy that counsel so often exercise in pressing their case upon court and jury.

Generally the question of contributory negligence is one of law and fact, but it may be one of .law only.

Now, to determine that' — whether.it is a question of law only, or one which must go to the jury in the first instance —our court of last resort has, in a number of cases, declared •certain principles, which may be formulated into one rule, as follows:

If there is evidence tending to prove every material fact which it is necessary for the plaintiff to prove to entitle him to recover, the case must be submitted to the jury, unless all the material facts as to the duty and conduct of the plaintiff are certain and undisputed, and admit of no reasonable inference but that of negligence on his part; in which case it is wholly a matter of law, and need not be submitted to the jury.

Counsel for plaintiff contends, however, that in no instance can a case be taken from the jury when there is some? evidence, however slight, tending to prove every material-fact of the plaintiff’s cause of action, and cite in support thereof, amongst others, the case of Ellis and Morton v, The-Ohio Life Insurance and Trust Company, á Ohio St. 628, and which presents the rule contended fox in a clear light,, as follows:

“The courts of this state,in a proper case, have the power to take the evidence given by the plaintiff from the jury and order a peremptory non-suit.
‘ ‘ Such a motion involves an admission of all of the fact& which the evidence in any degree tends to prove, and presents only a question of law,whether each fact indispensable to the right of action and put in issue by the pleadings has-been supported by some evidence.
“ If it has, the motion must be denied; as no finding of facts by the court or weighing of evidence is permitted.’’

While this rule was established by a divided court, I believe the law thus laid down is uniformly followed in this" state when applicable, viz: in cases where the testimony is conflicting, the facts uncertain, or the proper inferences to-be drawn therefrom doubtful. It is not often that counsel' and court differ as to the law, nor is it in regard to the law that so many mistakes are made. It is the application of it" to given cases, not what the rule is, that generally causes-differences of opinion. And so it is in the present case.

If we apply the principle of the case referred to, to the-case before us, and take it out of the region of abstract propositions, we may, perhaps, get a clearer idea and view of the rule itself, and at the same time see that the rule I have formulated is not in conflict therewith.

In a case like the present, the plaintiff is required to prove,, in order to recover, the negligence alleged on the part of the defendant, and that it was, as between the parties, the sole proximate cause of the injury which he received. Therefore, if facts disclosed in the testimony introduced by the plaintiff, raise a presumption of negligence upon his part, contributing directly to his injury, then it rests upon him to. show, by a preponderance of evidence, other facts sufficient to remove that presumption; or, if the defendant takes the course that was taken in this case, and offers no evidence, but submits it on the®evidence offered by the plaintiff, then the evidence of the plaintiff must be such as not to create such presumption; or if it does create such presumption, then that it shows other facts sufficient to remove and overcome such presumption before he can recover.

Now, if the case were such that the facts which the plaintiff introduced in evidence raised this presumption of negligence on his part, and there was no evidence to overcome such presumption — no evidence of other facts which might be sufficient to remove such presumption, the rule established in the case named would not be complied with, because the plaintiff had not given any evidence in support of a material point in his case.

As to the facts in the case before us, as proved by the plaintiff himself, it is sufficient now to say, that no reasonable mind could but believe that the plaintiff was guilty of gross negligence in placing himself on the outer point of the pilot of a locomotive going faster than he could walk, and in the darkness and rain stepping off immediately in front of it; or, which is sufficient for my present purpose, that such facts indubitably raised a presumption of negligence; and no evidence was introduced of the existence of other facts which could remove that presumption. There was evidence from himself relating to his conduct, detailing the facts of the occurrence; but there was no evidence introduced of a single fact which tended to rebut, control or overcome that presumption, and he did not [therefore offer evidence tending to prove every fact which^it was necessary for him to establish in order to recover.

Further, if the second or qualifying proposition of the rule I have formulated is correct, viz., if all the material facts as to the duty and conduct of the plaintiff are certain and undisputed, and admit of no reasonable inference but that of negligence on his part, the question of his negligence is one of law only, then it is apparent that the court will determine and declare the legal effect of such undisputed facts, notwithstanding there might be evidence tending in some slight degree to prove care on the part of the plaintiff, and consequenlty, that the rule declared in Ellis and Morton v. The Ins. Co., supra, does not apply to and cover all cases; and that the proposition is correct, admits of no doubt.

In Pennsylvania Company v. Rathgeb, 32 Ohio St. 66, it was held:

“1. Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing before attempting to pass over a known railroad crossing, should usé them for the purpose of discovering and avoiding danger from an approaching train, and the omission to do so without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.
“2. In an action for damages for alleged negligence, the question of negligence on the part of the defendant, or of contributory negligence on the part of plaintiff, is generally a mixed question of law and fact to be determined by the jury under the proper instructions from the court.
“3. But if all the material facts touching the alleged negligence be undisputed, or be found by the jury, and admit of no rational inference but that of negligence, in such cáse the question of negligence becomes a matter of law merely, and the court should so charge the jury.”

It is said in the opinion, pp. 75, 76: “In the case before us the evidence is clear that Rathgeb might have seen the train by merely using his eyes-in time to prevent a collision. There were none of the circumstances referred to in the Crawford and Snyder cases which absolved him from the duty of exercising his vision. There was no reason why he should not have looked; and had he done, so he would not have been hurt.

“A case of contributory .negligence was decided by the .Supreme Court of the United States, October term, 1877, The Baltimore and Potomac Railroad Company v. Jones, Weekly Law Bulletin, January 7, 1878. Jones was a laborer in the employ of the company. The men were in the habit of riding to and from their work. A locomotive and box car was used for this purpose, but the men, or some ■of them, often jumped on the pilot, and rode there. Jones had been cautioned against this, and forbidden to do so, but ■on the day when he was hurt, he disobeyed the injunction, .and jumped on the pilot; by a collision he was hurt. The court was asked to charge as follows: ‘If the jury find from the evidence that the plaintiff knew the box car was the proper place for him, and if he knew his position on the pilot of the engine was a dangerous one, then they will render a verdict for the defendant, whether they find that its agents allowed the plaintiff to ride on the pilot or not.’ This charge was refused. Mr. Justice Swayne says, ‘The plaintiff was not entitled to recover. It follows that the court erred in refusing the instruction asked on this subject. If the company had prayed the court to direct the jury to return a verdict for the defendant, it would have been the duty of the court to give such instructions, and error to refuse. ’
“In the case before us the negligence of the plaintiff was such that the jury should have been told that it barred his right of recovery. ”

It may be noted that the facts which the court held admitted of no rational inference but that of negligence in the Rathgeb case,and also in the case cited therein of The B. & P. R. Co. v. Jones, were not so pregnant of negligence in the plaintiff, as in the case we are considering.

In Winchell v. Crider, 29 Ohio St., it was said by Mcilvaine, J., pp. 486-87, “These requests assume that the signature was genuien, but obtained by fraud and without negligence on the defendant’s part. And the genuineness of the signature being granted, the case on the proof was that the defendant relied solely on the representations of Ingalls as to the character of the paper. His own testimony was: ‘I did not read the papers at the time I signed them. I can read. No objection was made to my reading the papers at or before the time I signed them.’ When all the testimony was in, if it had been demurred to on the ground that proper care and caution had not been exercised by the defendant in 4he premises, the demurrer should have been sustained by the court. Upon this fact there was no issue of fact for the jury to determine. The admitted conduct of the defendant presented a mere question of law. And the law', upon the admitted fact,is that the defendant was guilty of negligence,, and therefore, there was no error to his prejudice in refusing to give these instructions to the jury.”

It is apparent that where the question becomes merely one of law, it is entirely immaterial whether the court tells the jury to return a verdict for the defendant, or takes the case from the jury and enters judgment itself, because either course would produce the same result — a dismissal of the case.

In Ry. Co. v. Crawford, 24 Ohio St. 631, the same rule was declared as in the Rathgeb case; and in Ry. Co v. Picksley, ib., 254, and Ry. Co. v. Murphy, 50 Ohio St. 135, the rule is in no sense infringed; it is simply stated in different language — that where different minds may reasonably draw different inferences from the facts, then it is a question for the jury. The court must determine, from a consideration of the facts themselves, whether they are sufficient to produce that quandary, and it exercises that power for no other purpose than to ascertain whether the facts touching the alleged negligence are sufficient in law to require the question to be submitted to the jury; and if the court is convinced that they are not sufficient, and are undisputed, ¿nd admit of no reasonable inference save that of negligence, if it may not say so, and so hold, then the consideration of the question by the court is useless, and the rule declared in these cases a nullity.

If the doctrine of the last named cases can be considered as inconsistent with the rule declared in Ellis & Morton v. Ins. Co., then they must be held as qualifying that rule,for they undoubtedly express the law on the subject as i.t is established to-day.

In the case before -us, the plaintiff was the only witness who testified in regard to the manner in which he received his unjuries on the night in question; and one other witness only, Mr. Evans, whose deposition was read in evidence by the plaintiff, and who was an employe of the defendant on ■one of its locomotives or trains, and who passed, and got off and on his enigne at the place in question daily, testified as to facts bearing upon the question.

The plaintiff’s evidence showed the facts following: The plaintiff was head brakeman upon a freight train; he had beeii in the employ of the company, running past this point ■of passage of trains, for some time. He had been along there the forenoon of the day of the accident, going west, and the accident happened as he went east again. On the occasion in question his train proceeded eastward up to this point; it, was late in the night; it was, as he states,' a dark night, and raiuiug. He was informed that the train was to .stop at this passage point and take the side-track, and it was his duty as head brakeman to go forward and open the switch ■and turn the train upon the side-track. He was in the cab of the engine. His conductor was there, the enigneer and fireman, and as they approached near to the place, finding it was about the time for him to get off to go to the switch, and having obtained a key from somebody present to open it, he took his lantern and went out, not to the step of the ■engine on either side, but he went along over the running board of the engine, forward, and finally planted himself on the extreme point of the pilot, where he said he caught hold of the coupling bar of the engine, perhaps two feet high, to enable him to maintain himself in that position until he wanted to get off. tie had his lantern with him, and the light, he said, of the lantern, and of the head-light of the engine, -cast their rays in front, and he could not see immediately below liim the condition of the track, and he did not look, and had no business to look there; his business, he said;’ was to look ahead; and when the engine arrived at the proper point, as he supposed, he stepped off in the center of the track immediately in front of the locomotive, and his foot lit on a tie, and slipped off the tie and went into a hole where the balast had been removed, and he fell and received the injury of which he complains, by the engine running over part of his person.

He stated that the engineer had suggested to him in some words he could not repeat, not to stop him unless he had to, as they were on an ascending grade; did not tell him he should not stop him, but not to stop him at the switch if he could help it, and that the train was going from four to six miles an hour, faster than a man could well walk, or than he could walk.

Can it be possible that any sensible man’would say that he was not guilty of negligence, and of the grossest kind? He was simply courting death. Simply inviting his own destruction, and he even insisted that he did not do as Evans said he would have to do under those circumstances. Evans declared, “You dare not step off; if you do your foot is caught, you have got to jump and gain your distance ahead because the engine is moving at a rate faster than you could walk;” and the plaintiff was insisting he did not jump, but simply stepped off. It cannot be possible for men to differ as to his negligence. He could have done nothing more towards his own destruction unless he had thrown himself down in front of the engine.

Now, what circumstance did he show by his evidence, and that of his other witnesses, to control the legal presumption of his negligence? Was there any other means to get off the engine? Why, he said himself there was on either side, handholds and steps. Was there any place he could get off at that point except immediately in front of the engine? He himself said there was; he could have gotten off upon the right side, in the ditch; there was no water in that ditch, ballast — cinders—had been thrown into it from between the ties, and loose lime. Evans said it would be like stepping into flour; and the switch he was to throw was on that side of the track. Evans testified he could safely have stepped off there, “I do it every day off my engine. ’’ The plaintiff himself conceded that he could have done so. So there was another, and reasonably safe way for getting off to perform that duty, and the plaintiff unnecessarily chose the extremely hazardous on. He chose to be reckless, to perform his duty to himself as well as to his master in an utterly reckless method, instead of taking the reasonably safe method that was open to him of getting off at the side.

But counsel say, the rule is that if he believed that to be the safer course, or a safe course, and he had reasonable grounds to so believe, then he was not guilty of contributory negligence, and we are referred to the case of the Railroad Company v. Mowery, 36 Ohio St. 418.

The principle there decided is a familiar one, that where a passenger is brought face to face with imminent danger, by the company’s negligence,the company cannot require of him the exercise of the highest discretion, and his conduct is not to be weighed in golden scales. If he makes a mistake on the spur of the moment, in an endeavor to get rid of the danger brought thus suddenly upon him by the negligence of the defendant, it cannot be said, because he did not take the safest course, that he was guilty of negligence per se. If under such circumstances he did believe, and had reasonable grounds to believe, the course he pursued was the safer or a safe course, that would exculpate him. But, how is it in this case — was there any such state of facts ? This plaintiff deliberately chose the course he pursued to perform the act. He did it under no sudden pressure of haste, nor because of any danger suddenly brought upon •him by the negligence of the defendant or anybody. Can we apply such law to him? But if such were the law as applicable to this case, the plaintiff would be entitled to have •testified that he believed that was the safer course for him to pursue. But he did not so testify; he was not asked in regard to it; and the presumption would be that he was not asked, because the answer would have been unfavorable. 3 Ohio St. 384-85.

G. F. Arrel, for plaintiff.

Jones & Anderson, for defendant.

We see no error in the record in the matters complained of, and the judgment is therefore affirmed.