author: Scribner, J.

text:
    (Sixth Circuit—Lucas County, O., Circuit Court
    Jan. Term, 1895).
    Before Scribrer, Hashes ard King, JJ.
    The Toledo Electric Street Railway Co. v. The Toledo and Maumee Valley Railway Co. and The Toledo Consolidated Street Railway Company.
    Where a street railway company has regularly appropriated, by proceed - ings under the statute, the right to run and operate it's railway cars over and upon certain designated portions of the line of street railway of another company, it does not thereby acquire such an interest in the property of the latter company as to entitle it to demand from another company which has subsequently acquired, by contract with the company owning the railway the right to use its tracks, compensation for such use. The case of The Toledo Consolidated Street Railway Company v. The Toledo Electric Street Railway Company, 6 C. C. Bep. 362, approved and followed.

      Appeal from the Court of Common Pleas of Lucas County.
   Scribner, J.

This is an appeal from the judgment rendered in the case in the court of common pleas. The plaintiff is a street railway company, created and organized under' the statutes of this state, and certain ordinances adopted by the council of the city of Toledo. It is duly authorized to construct and operate, by electric power, upon and over certain designated streets within said city, its several lines of street railway, and has been engaged in conducting this enterprise for several years last past. The Toledo Consolidated Street Railway Co. is a corporation of like character, created in substantially the same manner, invested with similar powers, and engaged in operating its several lines of street railway within said city. The first named company, by proceedings in appropriation duly instituted and prosecuted in the courts of Lucas county, acquired certain rights in specific portions of the lines of railway of the Consolidated company. The nature of these proceedings, and the rights thereby acquired, will be hereafter more particularly noticed. The Toledo & Maumee Valley Railway Co. is a railway corporation, duly created and organized, authorized to construct and operate, by electric power, upon certain terms and conditions, a line of railway extending from or through the city of Toledo to the village of Perrysburg, in Wood county. Its line of railway has been duly constructed, and has been in operation since August 10, 1894. Its powers, so far at least as they concern this controversy, are mainly derived from the acts of May 17, and May 21, 1894, O. L.. Vol. 91, pp. 285 and 379. On June 1, 1894, this company and the Consolidated company entered into a contract, by the terms of which, among other things, a traffic arrangement between these two companies was provided for, and the railway cars of the Maumee Valley company were to be run over certain specified tracks of the Consolidated company. Some of these tracks included portions of those appropriated by the plaintiff, as before mentioned, and are used in carrying out the terms of said contract, without any provision for compensation to the plaintiff for such use. The petition filed herein sets forth, in detail, the facts above briefly stated, and the plaintiff insists that the use so made, without compensation, of the tracks particularly embraced in its appropriation proceedings, is in violation of its constitutional rights, and it prays an injunction to restrain such unlawful interference with its property, until steps are duly taken whereby compensation shall be secured to the plaintiff.

The plaintiffs counsel, in their briefs and arguments, state with' precision, the grounds upon which they base their claim. It is argued by one of the counsel for plaintiff, that by virtue of the proceedings in appropriation, set forth in the pleadings and in the evidence, the plaintiff company became invested with a joint ownership of the railroad property condemned — joint ownership with the Consolidated company, the company which originally constructed and operated the railway, portions of which were so condemned. It is claimed bylplaintifPscounselthatthe plaintiff company acquired not only the right to use and operate portions of the line of railway of the Consolidated company, but actually became invested with an ownership, to the extent of an undivided one-half of the portions condemned of the property of that company. The associate counsel for the plaintiff states his proposition in this form :

What property did plaintiff have, then, in the streets of Toledo, which defendant is averred to be using ?
1. Overhead constructions at the intersection of Adams and Summit, Jefferson and Summit, and Jefferson and St. Clair. These constructions consist of wires and poles put into the street for the purpose of communicating electrical power for the propulsion 'of cars. At other intersections, plaintiff claims to .have some of the property in the construction as originally put in by it.
The property put in by the plaintiff was placed in the three intersections named, with its own money, and the property in that portion is absolutely its own.
“2. The right to use jointly and equally with the Consolidated, the tracks and other structures in Summit street, from Adams to Perry street bridge, in Monroe street from Summit to Ontario, and in Adams from Summit to Michigan.
“This right was obtained in certain coudemnation proceedings in the probate court, with which this court is familiar. For it the plaintiff, with the right to use certain other property, paid the large sum of $34,000.00.”

It is in this form that the claim of ownership on the part of the plaintiff is asserted and set forth. Further on, the proposition upon which the plaintiff more especially insists in urging its right to interfere with the traffic arrangement between the defendant and the Consolidated company, is stated. It is in this language :

“ Under the averments in the pleadings, it appears that the Toledo Electric Street Railway Co. had acquired, by appropriation, the right to jointly use with the Consolidated company, the tracks and structures of the other, in the city of Toledo. This right was one for which the Electric Street Railway Co. paid a large sum of money. The right thus acquired was an easement. It is a property right which is protected by the constitution. Any impairment of its value is a taking, for which compensation must first be made in proceedings in appropriation. The additional use to which the new company puts the tracks is such an impairment.”

That is to say, briefly summarized, it is claimed that the appropriation by the plaintiff company of the right to operate and run its cars over certain portions of the tracks and railway structures of the Consolidated company, is property, and that any interference with that right, any impairment of its value, is the taking of property from the plaintiff company, for which, under the constitution, compensation must first be made; and that the grant made by the Consolidated company to the Toledo & Maumee Valley Railway company, by which that company is.permitted, or any arrangement by which the Consolidated compsxy undertakes itself, to transport the cars of the Maumee Valley company over its tracks in the city of Toledo, including the portions of tracks the use of which was acquired by the plaintiff is an impairment of the value of the property condemned, and to that extent, the taking of the property condemned, for which compensation must be made.

Let us look for a few moments to what is shown by the record of the appropriation proceedings upon which this claim is based. I turn first to the record of the proceedings in appropriation before the probate court, instituted March 12, 1891. .1 find in the petition in that case, among other things, these averments: the plaintiff, there referring to an ordinance passed by the common council of the city of Toledo, March, 27 1882, under which the plaintiff company first acquired its right to operate its lines in the city of Toledo, says :

“Said ordinance also granted authority to David Robinson, Jr., trustee, his successors or assigns, to occupy, according to-law and ordinance, so much of existing railroad tracks upon the above named streets, as is necessary for the successful operation of said electric railroad therein.”

It will be seen that according to the recitals of this petition the ordinance of the date named, granted to the trustee, his successors or assigns, authority “ to occupy according to law and ordinance, so much of existing street railroad tracks,” etc. And further on in this petition we find it stated, that by an ordinance bearing date July 28, 1890, there was granted “authority to the Toledo Electric Street Railway Co., to use and occupy according to law and ordinance, the existing street railway tracks in said portions of Adams and Summit streets.” Here it is repeated, as will be seen, that the authority granted was to use and occupy the existing street railroad tracks in the portions of the streets described. Then comes this statement in the petition to condemn :

“ Plaintiff says that it is necessary, in order to carry out the objects and purposes of this corporation, and to exercise the rights, privileges and franchises given to it by law and the ordinances of the city of Toledo, it shall appropriate to its use jointly with the Toledo Consolidated Street Railway Co., the right equally with said defendant, the Toledo Consolidated Street Railway Co., to use, and occupy, and run its electric cars, to be propelled by electric power, over and upon so much of the defendant’s street railway tracks, switches, turn-tables, turn-overs, curves, turnouts, and other structures in said Summit street, Perry street bridge,” etc.

Thus proceeding to recite the various streets and public places where the petitioner alleges it is necessary, in constructing and operating its proposed line of railway, that it should use and occupy the tracks constructed by the Consolidated company. And the prayer of the petition is in conformity with and used this statement:

“ Wherefore plaintiff prays that such steps may be taken as are authorized by la'Cv, whereby it will be enabled to appropriate to its own use equally and jointly with said defendant, The Toledo Consolidated Street Railway Co., said property of said defendant necessary in order to enable it, said plaintiff, to maintain, use, occupy, run and operate its said cars to be propelled by electrical power, upon said defendant’s track, turnovers,” etc.

The record further shows that the jury, after hearing the testimony, the arguments of counsel and charge of the court, made their award as follows:

As compensation for property taken..........$12,333.40

As damages to the residue by reason of the

appropriation.................................... $3,308.00

And upon that verdict the court, on the 7th day of July, 1891, rendered its judgment, and ordered “that the said verdict be, and the same is, hereby confirmed ; to which order and judgment the said defendant, The Toledo Consolidated Street Railway Company, then and there excepted.”

The probate court in instructing the jury upon the questions, in volved, in other portions of the record, made use of this language:

“ You will see from this that plaintiff does not seek to appropriate property itself of the defendant company, but only a right therein — the right to use equally and jointly with the' defendant the property specified in the petition ; leaving the ownership with the defendant company, and also leaving to it, the defendant company, the free use and occupation of any and all said tracks as perfectly as now possessed, except only in so far as two cars cannot occupy the same space at the same time. Herein is found the distinction between this case and the appropriation cases cited by counsel, and on which arguments and requests for charges are founded.”

The same proposition in substance is stated by the court in somewhat different language. And the court adds :

In considering this branch of the case, you will not consider any interference with the cars of the defendant company, or delays caused to such cars, nor any inconvenience to the defendant company in handling its passengers, as all these are the inconvenience, delay and interference with the general public, and is the price which every citizen pays for living in a community with others, and for passing over the same thoroughfares or in the same public conveyances used by other citizens. These are, therefore the loss of the public, and not of the company, for which said company is not herein entitled to compensation.
Neither will you consider any loss of business which may result to the defendant company by reason of plaintiff going on the same route, nor consider any additional expense caused to the defendant, if any there be, by reason of plaintiff’s cars going on defendant’s tracks ; for the public welfare and convenience is the one ground on which it is permitted to place in the streets a structure to be used for private gain. And when that public welfare or convenience requires a further similar or. additional use, the elder company has no right to demand compensation of the new company for damages so remote and uncertain as to be entirely in the field of speculation.”

This court had occasion to review, to some considerable extent, the doctrine involved in this case in the case of The Toledo Consolidated Street Railway Company v. The Toledo Electric Street Railway Company, (6 C. C. Rep. 362), covering very much the same- ground in its legal aspects as is presented here. On page 381 this language was used:

“ The objection that the act contains no provision or limitation protecting the rights of the corporation owning the existing tracks, possesses much force. According to our view, power'is not conferred to appropriate the property of the corporation owning the tracks, in the ordinary sense of that term, but only power to appropriate the right to the joint and equal use of such tracks or structures. This right, it is true, may be designated and regarded as property, but it may be exercised only during the existence of the franchise granted the company whose tracks are subject to such joint use. By statute this cannot exceed a term of twenty-five years, though it may be renewed by the council in the exercise of its discretion. Strictly, the company originally owning the tracks continues to be the owner. The only interest the appropriating company takes is the right to use, jointly with the other company, for a limited period, such portion of the tracks as are designated in the- appropriation proceedings, to the extent authorized by the statute. As to the matter of rules and regulations, these may in part be provided by the council, in the exercise of the police power for the protection of the public. So far as the rights of the two companies are concerned, inter se, it is, in our judgment, within the power and jurisdiction of a court of equity to provide suitable protection to each, against the invasion of its rights by the other company.”

In that case the following language was also used by the court, at page 395 :

"We come now to a question oí great importance. It relates to the measure of compensation to which the plaintiff in error is entitled for the use of its tracks and other structures by the appropriating company. This question is presented in the record in various forms; in exceptions to the rulings of the court in admitting testimony offered by the defendant in error; in rejecting testimony offered by the plaintiff in error; in refusing to instruct the jury as requested by the plaintiff in error ; and in the charge of the court as given to the jury. It was agreed on all hands that the plaintiff in error was entitled to full compensation for the property of that company to the extent that it was sought to be taken ; the principal contention was as to what constitutes 'property’ in the sense in which that term is used in this connection.”

The question so arising being the same as that presented in this proceeding.

“ The appropriating company claimed, in effect, that it is limited to the rails and other materials in place ; that is, to the value of material and cost of construction, and the reasonable cost of keeping the structure in proper repair; while its adversary insisted that in estimating the compensation to be awarded there should be taken into account the value of the franchise to operate the street railway in the streets of Toledo, acquired by the plaintiff in error under the ordinance before mentioned, and its contract with the city. It is insisted that the plaintiff in error was thereby invested with the exclusive right and easement to use, for street railway purposes, so much of the streets of the city as is occupied hy its tracks. As a result of this view of the rights of the plaintiff in error, it is insisted, among other things, that it is entitled to be paid for the loss of fares which would be occasioned by the proposed joint use and occupancy of its tracks; for the inconvenience and interruptions to business caused thereby, and for the consequent depreciation in value of' other portions of the line forming part of the street railway system. These and kindred views were presented by the parties during the trial, in every conceivable form.”

On pages 396 and 397 of the report appears a portion of the charge of the probate court in this particular case, the Adams street case as it is called, and the rule in part is there stated by the court in this language :

“ This proceeding is not intended to appropriate the physical property, or title of the property, or any portion of it.
When your award is made, the property in question will remain the property of the defendant, the same as it is now.
“ The right asked to be appropriated, and for which you are to award compensation and damages, is the right to use and occupy, jointly and equally, the property of the defendant company, as above defined, between Michigan and Summit streets on Adams street, for the purpose of operating its ears over and upon, the existing tracks, propelled and moved by electric power.
In ascertaining the amount that should be awarded for this use, you will bear in mind the definition above given you of what constitutes the property under consideration.
“ For the purpose of enabling you to arrive at a fair and correct conclusion on the proper amount to be awarded for this use, you have been allowed to view and inspect the property, in order that you might see its present condition and construction. In your deliberations you are authorized to use this inspection so far as it may aid your judgment. In connection with this inspection and view, you are to consider ■carefully all the evidence before you, bearing on the condition and value of the property. To aid you in this consideration, ,■evidence has been admitted, showing the mode, date and cost ■of construction, the condition of the property at the present time as the result of its use by the defendant. You have inspected it, have heard the testimony relating tp the mode of construction, the material used, the cost, the effect of use, and its present condition. All this evidence, and any other that in your judgment may throw light upon the question of the present condition and value of this property, you should carefully consider; and your award for the joint and equal use and occupation of this property, taken in its present condition, should be such as will fully and fairly compensate the defendant for the joint and equal use and occupation.
“Upon this question you should not only take in consideration the construction constituting the tracks of the defendant, but also the paving, which the defendant has been required, by its ordinance, to construct.
“In considering the value of this property, as one of the tests for arriving at the value of its use, you should exclude all value arising out of airy franchise or easement in the street, or fi'om its earning capacity, or from its physical connection with any other portion of the defendant’s road or system of roads.”

In further discussing the proposition presented here in argument, this was said by the court referring to the Cleveland case cited in the ai’gument, on page 402 :

“ It will be observed that nothing was allowed by the council in the above case for the easement, for the loss of fares, for delays and interruptions of business,'or for depreciation in value of the tracks of the plaintiff.
“ This was obvious to the court in passing upon the case. It was plain that the council did not take into consideration any of these elements in fixing the ‘reasonable compensation.’ And all this was urged upon the court with muclx force by counsel.. The court said that no evidence had been given tending to show that the compensation fixed was inadequate; but the facts appearing in the case did show, conclusively, that nothing had been allowed by council beyond a proportionate amount for the value of the materials in place, and the cost of future repairs, and for making such changes as might thereafter be required by the council; and had the court been ofthc opinion that the plaintiff was entitled to compensation for the matters claimed by counsel, it would have necessarily followed, as it seems to us, that the prayer of the petition should have been granted; for the city council did not possess arbitrary power in the matter. The court indicates in clear terms, that the company was entitled to show, by proof, that the compensation provided for by the city council was inadequate; and that no compensation was allowed in respect to the matters complained of, is, as before stated, manifest in the record.”

These propositions, or the grounds in their support stated in the opinions I have quoted, are summarized in paragraph 18 of the syllabus, which is found on pages 365 and 366..

It results from these views, in our judgment, that the right appropriated to run cars upon the tracks of the Consolidated company by this plaintiff is not such property as entitles it to compensation for such interference therewith as may result from granting a like privilege to another company.

In this connection it is not improper to call attention to certain provisions contained in the agreement between the two companies — that is, between the Toledo Consolidated Street Railway Co. and the Toledo Electric Street Railway Co.— bearing date June 16, 1892, by the preamble to which it is provided :

. “Memorandum of agreement, made and entered into this 16th day of January, 1892, by and between The Toledo Consolidated Street Railway Company, its successors and assigns, including those associated with it as hereinafter stated, party of the first part; and The Toledo Electric Street Railway Company, its successors and assigns, including those associated with it as hereinafter slated, party of the second part.
“In the term ‘ party of the first part’ as aforesaid, and in the privileges and rights granted thereto, there is to be taken and included all companies, individuals and corporations, and all lines of street railway, which are now and may be hereafter operated by or in connection with the said The Toledo Consolidated Street Railway Company, whether the same shall be owned, leased, consolidated \vith or operated by contract or otherwise, with the owner thereof.
“In the term ‘party of the second part,’ and in the privileges and rights granted thereto, there is to be taken and included all companies, individuals and corporations, and all lines of street railway, which are now or may be hereafter operated by or in connection with the said The Toledo Electric Street Railway Company, whether the same shall be owned, leased, consolidated with or operated by contract or otherwise, with the owner thereof.”

It is not of much consequence in this case as to what shall be the proper construction of this contract. It is insisted, in an elaborate argument upon the part of plaintiff, that it does not really affect the rights of these parties nor bear upon the questions presented here; but inasmuch as, in our judgment, by the appropriation proceedings of the plaintiff, set forth in the petition and in the various records presented here, there was acquired by the appropriating company the right simply to run its cars over the railway of the Consolidated company upon the terms and conditions therein provided for, the right so acquired does not entitle the plaintiff company to compensation for the interference, so far as it maybe called an interference, with the running of its cars by the granting of a similar privilege to another company, it is a matter of no material moment, as to what construction shall be given to this contract in disposing of this case. Our view is that the plaintiff acquired the right to run and operate its cars over certain portions of the street railway structure of the Consolidated company; and that such right, or privilege, does not inhibit the Consolidated company from granting a similar privilege to another company. If the plaintiff in this proceeding is correct in its views, manifestly the probate court, and all the reviewing courts, •were wrong in excluding from the consideration of the jury evidence tending to show that the value of the structures of the Consolidated company was interfered with and depreciated by the grant to the Toledo Electric Co. of its right to operate the portions of the railway condemned. One of the .principal grounds of complaint on the part of the Consolidated company was, that the use of its tracks in the manner proposed, interfered with its business, delayed the passage of its cars, and deprived it of certain fares, and in various ways depreciated the value of its property; and this claim was held inadmissible in our judgment. That opinion has, to some extent, been affirmed by the Supreme Court.

J. F. Kumler and F. H. Hurd, for plaintiff.

King & Tracy and Barton Smith, for defendant.

As to the traffic arrangement between the defendant company and the Consolidated company, we suppose it is a matter of no material difference to the plaintiff that such an arrangement was entered into, and the privileges conferred by it are being exercised. The two companies had the right and power to enter into that arrangement, and possessed the right and power to carry it out, and no right of the plaintiff'company is interfered with by their so doing.

It is complained that certain railroad-crossing structures, and certain electric power in use, and certain overhead wires, belonging to the Electric company and to the Consolidated company jointly, as well as some property belonging solely to the Electric company, are made use c( by the idanMOB Valle} Co. in operating under their c<n trtut; bus we hslíli. a the case of the Central Ry. Co. v. Toledo Elec. Ry. Co., that whatever claim to damages, if any, might accrue to the owner of such crossing-property, or property of alike character, no remedy by way of injunction was conferred which would entitle the owner to interfere with the appropriation of the line; that the remedy, if any existed, was by proceedings to recover damages for the interference with the property.

Under this view of the law of the case, it results from the facts shown, that the petition must be dismissed; and it is so. ordered.


source: Caselaw Access Project

author: Laubie, J.

license: Public Domain

text:
    (Seventh Circuit—Columbiana County, O., Circuit Court
    Jan. Term, 1895.)
    Before Woodbury, Laubie and Frazier, JJ.
    James Sharp, Ex’r, etc., v. Isabella McPherson et al.
    A testator bequeathed all of his personal property to his sister, who had been his housekeeper for oyer fifty years, and also gave her an estate for her life in a farm which he described as ‘‘ the farm on which I reside, situate, etc.”; and directed that, at her death, hi3 executor should sell such farm, and all his real estate, and divide the proceeds between a niece and two nephews. After the. making of the will, the testator sold the farm, and took a mortgage thereon for part of the purchase-money, a portion of which remained unpaid at his death. A part of the money paid to the testator was unaccounted for, a part he used for his support, and the remainder he gave to the plaintiff to keep for him, who deposited it in bank at interest, where it remained up to the testator’s death, The executor has in his hands for distribution hut $200.00 in addition to the sums thus left of the proceeds of the sale of the farm; and the testator, at no time, owned any other real estate. Upon action brought by the executor for construction of the will, held:

    That the legacy to the niece and nephews was specific, and adeemed by the sale of the farm by the testator, and the avails of such sale, including the amount collected by the executor upon the mortgage, would pass to the sister, under the bequest to her of all the personal property.
    Appeal from the Court of Common Pleas of Columbiana County.
   Laubie, J.

This case eame into this court on appeal, and was brought to obtain a construction of the will of the decedent, Richard McPherson.

The will was dated June 20, 1887, and the subject-matter of the devise in question was a farm which was sold by the testator in his life-time, October 2, 1888, and he died September 9, 1892. He sold this farm for the sum, in round numbers, of $4,575. He received a down payment of $.1,000, and subsequently an additional one of $1.787, and there was, at the time of his death, $2,396 due of the purchase-money, secured by a mortgage. The $1,000 which he received as the down payment, the testator must have expended, as no account is gjjv.en of it. The second payment of $1,787, he gave •fb Mr. Sharp, the plaintiff, to keep for him, and 'it"'is' agreed that Sharp deposited it in bank, at interest, where it remained up to the death of the testator, .with the exception of. $400 of it, which he paid for the support of the testator, so that, of that payment, the testator consumed $400. The testator owned no other real estate at ány time, and owed no debts substantially. The chattel property of the testator, with the exception of a small amount of furniture, was also sold by the testator during his life-time, and what became of the proceeds of that sale, the amount of which was small, we are not advised. ,The executor collected the last installment, of the purchase- • money of the farm. .Of the amount for? distribution in the executor’s' hands, there is but $200 over and above that which was received from the sale of the farm; so that under the be.quest to Isabella McPherson of all his personal property, it appears she would receive only -about $200, unless it is determined in this case that she is also entitled to the avails of the sale of this farm.

.This question depends upon the construction to be given to the following items of the will:

“ Item 1. It is my will that all my just debts anj funeral expenses be first paid.
“Item 2. I give and devise to my sister Isabella McPherson, to use and dispose of as she may desire, all my personal property of every description (after paying my debts and funeral expenses). I also give and devise to my said sister, the farm on which I reside, situate in Washington township, Columbiana county, bei,ng part of sections No. 6 and 12, in said township, and containing 122 acres, during her natural life.
Item 3. At the death of my said sister, it is my will that my said farm and all other real estate that I may own, shall be sold by my executor herein named, either at public or .private sale as he may think best, and upon such terms as he shall think best, and the proceeds, after paying all costs and expenses,,shall be divided and distributed as follows: One-half thereof shall be paid to my niece’ Jane Longworthy, or her heirs; one-fourth thereof to my nephew, Richard B. Hogue, now of Kansas, and the balance one-fourth to my ephew, Richard M. Haugh,.of Wellsville, Ohio.”, .

The plaintiff was made executor., with authority to sell,!’ ■etc. • ■

The sister, Isabella McPherson, it is agreed, had kept house for the testator for fifty years' upon this farm, and until it was sold by him in October, 1888. The question made here is to-whom do the proceeds of the sale go? ..Upon the part of Isabella McPherson, it is claimed that the legacy .to the nephews and niece of the proceeds of the farm is a specific one, and was. adeemed by the sale of the farm by .the testator in his. lifetime, and that the money passes to her under Item 2 of the will. On the.other hand, the nephews an.d niece claim that, it is not a specific legacy, but a demonstrative one, and that, the sale in the life-time of the testator.did not adeem the leg1, acy, and that they are entitled to all the proceeds of the farm-, which can be now identified, and all-the proceeds save $1,400 are identified by the executor. The character, therefore, of the bequest, whether it is a specific one or a demonstrative one, will settle and determine the question in the case.

Without undertaking the impossible task of reconciling the conflicting decisions upon the question, and involving myself in a labyrinth of cases devoted to overnice distinctions and fine spun theories, I think it sufficient, for the disposition of this case, to state generally the principles applicable thereto.

A specific devise or bequest is one, which, according to the intent of the testator, is limited to the subject-matter given. A demonstrative legacy is one which the testator charges upon, or directs to be paid out of, a particular fund, if the language used indicates that the fund was referred to only as a conve-, nient means of payment, and that the legacy should be paid-even if the fund should fail.' And upon this distinction it is generally held, that where a specific thing is given, or its proceeds, if ordered to be sold and distributed, the devise or bequest is specific, and a sale of the thing by the testator in his life-time revokes the devise or adeems the gift. 3 Pom. Eq. (2nd ed.), secs. 1130, 1131, 1133, and notes; 2 Redf. on Wills, (3 ed.) star-paging 132—141, and 145; Walton v. Walton, 7 Johns. Ch. and note thereto in 11 Am. Dec. 456, 468, 469, 470; 2 Am. L. C. Eq. (4th Am. ed.) 600, 649.

■ It is said in the note, in 13 A. & E. E. L. 75, that, “ In many cases a distinction exists between the bequest of a thing in specie, and the bequest of its proceeds; in the former case, a sale will work an ademption, in the latter it will not.” And again, in note on page 76, and in 2 L. C. Eq., supra, on page 672, it is said : “ It is well settled that a bequest of the proceeds of a debt will not be adeemed by payment, and the principal is the same where the debt is bequeathed and its proceeds.” These statements are misleading, and some of the cases cited to sustain them, hold either the opposite doctrine, or a modified form of it. As an example, the syllabi of two of the cases cited in support of the proposition in the Ency. of L., supra, are given on the same page in the next note, as follows:

“Testator, by will, gave to his executors a bond and mortgage for $7,000.00, the present amount of principal due, and which I hold against J, in trust to pay the interest to A for life, then to convert the bond and mortgage into money, and to divide and distribute the net proceeds. Before the testator died, the amount was paid to him by J, and at his death the money remained on deposit at the bankers. Held, that the legacy was a specific one, and was adeemed. Abernathy v. Catlin, 2 Dem. (N. Y.) 341.”
“ Testator, after expressly disposing of all of his estate, except certain claims against the United States Government, bequeathed a specified sum out of the proceeds of said claims to complainants, or so much as should remain after paying certain legacies to others. At that time, his claims were pending before the court of claims, but before his death, he collected them, and invested the proceeds in securities, realizing a sum sufficient to have satisfied the. bequest to complainants. Held, that , the legacies were specific, and were payable only in case the executors collected the funds from the source indicated, and that the testator by collecting them, caused an ademption of the legacies. Geo. Inf. v. Jones, 37 Fed. Rep. 750.”

And in 2 L. C. Eq. (4th Am. Ed.) in the note referred to, on page 649, many cases are cited to sustain a statement there made, that the doctrine of some of the earlier cases of the distinction between a bequest of a debt, and its proceeds, was exploded, and no longer recognized by the courts, and that “it is now established, that such bequests are specific, and not demonstrative, and will fail if the debt is satisfied or extinguished before the will goes into effect.” See also cases cited on pages 613, 623, 655, 662, et seq.

McNaughton v. McNaughton, 34 N. Y. 201, cited in the notes referred to in support of such distinction, seems to be relied upon by counsel on either side of the case at bar, and 1 refer to it here specifically only on that account. That case is another example of the inaccuracy of the notes referred to. The testator iu that case, bequeathed all of his personal estate to his widow, and a life estate in his real property; and, at lmr death, directed all his real estate to be sold, and the proceeds to be divided amongst his nephews and nieces. He owned no real estate but a farm, at the date of the will, which he sold in his lifetime, and took a mortgage for part of the pnrchase money, which was unpaid at his death. After he sold the farm, the testator bought a village lot, and that was all the real property he owned at his death. It was held that the avails of the mortgage passed to the widow, under the bequest to her of all the personal property.

Our attention is called to what is said by Porter, J., in one of the opinions delivered in the case, viz:

“ The bequest was of the proceeds of his real estate. And in that sense it was specific, but it was in no sense a specific bequest of the proceeds of the farm, which he afterwards sold. If the latter had been its character, it may well be questioned whether the sale would have operated as an ademption of the gift.”

And he cites as a basis for that doubt, Coleman v. Coleman, 2 Ves. Jun. 639; Ogle v. Cook, Id. 686; Havens v. Havens, 1 Sandf. Ch. 329; Gardner v. Printup, 2 Barb. 83; Pierrepont v. Edwards, 25 N. Y. 121.

The first two cases are of the “earlier cases,” referred to in 2 L. C. Eq., supra, whatever may be said of Gardner v. Printup. Havens v. Havens was a bequest of the testator’s stock in an insurance company, and it was held, very properly, to pass that which remained on hand at his death. Pierrepont v. Edwards, was a case of an annuity of $7,000.00, during widowhood, (with no otherprovisionforthewidow),payable out of the income of the estate, and was held, not inaptly, to be a demonstrative legacy.

I do not, however, pretend to say- that all the later cases repudiate this distinction; but the current of the authorities is against it; and in our own state, I think the question is placed beyond cavil by the case of Gilbreath v. Winters’ Ex’rs, 10 Ohio 64. In that case, counsel cited substantially all the reported cases, pro and con; and the court say in reference thereto:

“ In the investigation of this case, we have been very much aided by the industry of counsel in collating the authorities and derived no small light from the manner in which they have presented their views.”

So that the court had before them substantially all of the cases reported up to that time, and passed upon the point deliberately, in the light thus furnished, with as much intelligence, so far as a consideration of the principle involved is concerned, as it could do at this later date.

The bequest in that case was :

“ I also give and bequeath to my wife, Mary, all the amount of moneys and interest that may be recovered of and from Dr. Kirker, for the purchase of the Penrose estate, to her and her assigns.”

It was therefore the gift of the proceeds of that debt, and without limiting it, in express terms, to an amount to be collected by the executor; and yet the court held, that it was a specific legacy, and was adeemed by the payment to the testator in his lifetime. The court say :

“The testator does not give an amount of money to his wife, and refer to the amount due to ascertain the quantity ; but the language is, that the amount of moneys and interest, etc., that may be recovered of and from Dr. Kirlcer. This language, in its ordinary acceptation, would seem to bestow this specific debt, and if nothing should be recovered, it could hardly be successfully claimed that the amount due from Dr. Kirker should be paid to the legatee out of the general assets of the estate.”

So that, on this controverted question, whether the gift was to be regarded as a gift of the proceeds of the debt, or of the debt itself, it was held to be a specific bequest which was adeemed upon collection of the amount by the testator; and a gift of the proceeds of a debt due the testator, cannot be distinguished, in principle, from a gift of the proceeds of a farm.

The gift of the proceeds of a particular farm named, is substantially a gift of the farm itself, — "a devise of the farm ; and if, therefore, it is not in existence as a possession of the testator at the time of his death, there is nothing for the will to operate upon. The thing is gone, and therefore it cannot pass under the will to the devisee.

In Holt et al. v. Lamb et al., 17 Ohio St. 374, it is held:

“Where land is devised to a tenant for life, with direction that at his death it be sold, and the proceeds divided among his children, the children may elect at his death to take the land itself, or to have it sold for their benefit.”

As the beneficiaries may take it in specie, it is apparent that the direction- of the testator that the executor shall sell it and divide the proceeds among the legatees or devisees, is feimply for convenience, in order that each may receive his equal share of the farm. Being in effect a devise of the'farm itself, if the farm is sold by the testator in his lifetime, it is a revocation of the devise.

It is immaterial, therefore, in this instance, whether it be re-' garded as a gift of the proceeds, or a gift of the farm itself, because a sale by the testator in his lifetime; in the one instance adeems the legacy, and in the other revokes the devise.

The will is to take effect from the death of the testator; and where there is no farm of the description owned by the testator at his death, there is nothing whatever for the devise to act upon, and the direction to the executor to sell and divide the proceeds becomes impossible of performance. The farm being gone, the gift fails; and the sale by the testator indicates a change of intention on his part as to its disposition.

• While the determination of the question is governed somewhat by the rules of law applicable thereto, yet it depends principally upon the intent of the testator. What did he intend ? Did he intend to give the specific thing, or to limit the gift to the particular subject-matter? Or did he intend to give an amount of money in any event, and refer to the fund merely as a convenient means of payment ? As already stated, the sale'of the farm indicates a change of his intention. Clearly it must in this case, because, in the first place, he devises the farm to his sister, for life, and, secondly, directs his executor to sell the same after her death, and to divide the proceeds, after paying the costs and expenses of sale, among his nephews and niece. Now, the very thing which he does, in effect, give, and out of which, and out of which only, the money that was to go to these legatees could arise, he himself sold in his lifetime, and used and consumed a portion of the proceeds. It is therefore evident that it evinces a change of intention upon his part, and indicates that these legatees should not have the proceeds of that farm. He intentionally, by tbe sale, revokes the devise of the life estate'to the sister, and leaves uncanceled and unrevoked the provision that all of his personal property, of whatever description, should pass to his sister absolutely '; and, therefore, it may be said that he had changed the land into money so that it might go to this indigent sister. ' The object of the whole will seems to be, notto provide for the nephews and the niece, but to provide a support for the sister, she who-had lived with him until old age, and to whom, as it appears, he could give but a small amount of property at best for her support. And any other view of this will would seem to frustrate that intention, because she would get but $200.00 for her future support out of the whole estate, if the proceeds of the land thus sold by the testator should go to these nephews and niece.

The fact that he took a mortgage for the purchase-money, and that part of it remained unpaid at the time of his death', does not change the proposition. It does not change the gift from a specific to a demonstrative one. 3 Pom. Eq., (2nd Ed.), sec. 1131, and note; 1 Redf. on Wills, (3d Ed.), star-paging, 38-40; 2 Redf. on Wills, 137; 13 Am. & Eng. Enc. of Law, 75, 76.

Section 5956, Revised Statutes, does not affect the question. In 3 Pom. Eq., 1131, and note, the statutes of the states upon this question are referred' to, and as they are substantially as ours, I call attention to what is said upon that question :

“It is proper to notice in this connection, certain legislation adopted in several of the states, and perhaps in most of them, of which sections 1301-1303 of the California Civil Code, may be taken as the type. These sections, and the similar statutes of other states, provide that when property is specifically devised or bequeathed, the testator’s executory agreement to sell it, or his charge or incumbrance put upon it, ór his conveyance, settlement, or other act, whereby his interest in the property is altered, but not wholly divested, shall not work a revocation, that is, an ademption of the gift, but the devisee or legatee shall still take the property, subject to the rights of the third, person thus created. These statutory provisions do not seem to interfere with the general doctrine concerning the ademption of specific legacies.”

In Brush v. Brush, 11 Ohio 291, 292, it is held . “ The statute of the state should have no effect in a case like the present, because, in order to come within the statute so that the whole interest of the testator' is not disposed of, there must be something remaining in the land itself, some interest in the land itself, which would descend to the heir at law, and not pass to the personal representative as personal property.” The amount due upon the mortgage'would not descend to. the heir at law, but would pass to the administrator or executor as personal property, and therefore, there was no title or interest retained in the land by the testator which could descend, and the statute has no effect on the proposition.

It is claimed that the sale by the testator was a mere equivalent of the power of sale given to the, executor, and therefore the proceeds, which were identified, pass to the nephews and niece; but it is not, because thesaleby the testator destroyed the life estate, which it was his intention that his sister should have for her future support. In McNaughton v. McNaughton, 34 N. Y. 206, it was held that the sale by the testator was not an equivalent to a sale by the executor; because it took away the life estate given in the lands,' which the executor could not do — he could sell only after the life estate had been put an end to by the death of the life tenant.

We think that this is a specific legacy within the strictest definition of the term as given in the books. That it is one, which, under the intention of the testator, is limited to the: particular subject-matter given. Again, and it is but another method of stating that the legacy is specific, and therefore is adeemed by a sale of the thing in the lifetime of the testator, a specific legacy must be paid in the particular mode pointed out, and can be paid in no other. 2 Redf. on Wills, star-paging 138, note 27; Geo. Inf. v. Jones, supra; Clark v. Packard, 9 Gray 471. In the last named case the court say :

“ If there had been no provision beyond the mere devise of the real estate, no doubt the sale of it would have operated as an ademption, and if the legacy had been bequeathed upon a contingency which could never occur, the devisee could not have recovered it, and it must have been lost. Thus, in a prior clause of the will, he devised one-third part of the same farm to his daughter Harriet, but if his executor should think proper to'sell the farm, then, and in that case, he bequeathed to her one-third of the.proceeds of the sale. But as the farm was disposed of by the testator, himself in his lifetime, both the devise and the legacy failed. The devise, because there was nothing at the testator’s decease upon which it1 could, take effect".; and the legacy, because the contingeney.-of ,a,sale by the executor had. become impossible.”

John MeVieJcer, for plaintiff.

Wells & Wells, for Isabella McPherson ; Potts & Moore, for Richard B. Hogue; W- F. Lones, for Richard M. Haugh.

• In the case at bar the gift was of the proceeds, of the sale of a farm to b§ sold by the executor -after the. death of Isabella McPherson, the life tenant, and ,as„that became, impossible of performance, by the disposition of the farm by the testator in his lifetime, the legacy failed; and while the sale of the farm revoked the devise of the life estate to Isabella McPherson, it turned the land into money, and that money passed to her under the bequest of all of his personal property, so far, of course, as it existed, at the time of his death, after the payment' of costs, expenses of administration, and the debts; and the decree may be taken accordingly. ■ •


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Nov. Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    Susan A. Winslow et al. v. City of Cincinnati.
    Where a toll road lying within the city limits has been condemned by the city, the assessment to pay the damages awarded to the Turnpike Co., may be assessed on the abutting'property, less two per cent, payable - by the city.
    Appeal from the Court of Common Pleas of Hamilton County. ;
   Smith, J.

In this case, with some reluctance, we have reached the conclusion that the same decree should be entered in this court as to the validity of the assessment complained of that was rendered by the court of common pleas, viz.: ..That under the provisions of the statute, two per cent, of the assessment levied by the city, by the foot front, upon the property lying within the city limits, abutting on the turnpike in question, the right of which company to take toll on that part of the road lying within such limits had been condemned by the city, must be paid by the city, and that the residue was legally assessed against the abutting property.

W. M. Ampt, for plaintiff.

Corporation Counsel, for defendant.

It seems to us that in right and justice, such damages, or a very considerable part of them, should be paid by the city from its general fund, as has been uniformly done hitherto, as we are informed. It certainly is a matter in which all of the people of the city are interested, and operates to their benefit; and the abutting land holders, while they may be more particularly, are not exclusively interested therein. And yet we can not say as a matter of law, in view of the decisions of our courts, that the property is not so specially benefited as to justify an assessment thereon, to pay the damages awarded for taking from the company the right to take toll over so much of the road. And as section 2642, Revised Statutes, provides, in effect, that when the property of a turnpike road is acquired by a municipal corporation, such provision for the cost thereof may be made as is provided with respect to the cost of ground for streets and other highways of the corporation, and it seems clear when such property is so acquired under the provisions of section 2264 the municipal corporation may assess the cost upon the abutting property, it would folfow that if the law,is valid, the cost in this case also may be assessed upon the abutting property. And, as intimated, we are not able to hold that the statute is in violation of any constitutional provision.

There is no claim that if the council had power to make the assessment, that the terms of the statute have not been complied with except as to the two per cent. A decree may be entered accordingly, the City to pay the costs.


author: Bentley, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    September Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ
    The L. S. & M. S. Railway Company v. James H. Winslow.
    1. In a civil action against a railway company for damages for injuries claimed to have been suffered by the plaintiff on account of the alleged negligence of the company in failing to block a certain point in a switch in the yard of the company, the question whether it was practicable or proper to block the place in question, and whether the company was negligent failing to block the same, is for the jury.
    2. If it appears that the plaintiff, some weeks prior to the injury complained of, knew of the defect, it is competent for him to show information received by him prior to his injury reasonably tending to induce him to believe that the defect had been remedied.
    3. A request by the railway company in such case, that the court charge a certain proposition, is rightfully refused if the proposition ignores a material claim of the plaintiff upon which he has offered any substantial proof.
    4. Where the plaintiff in such action was a yard-switchman in the employ of the company, and was under the direction of the assistant general yard-master who had the general control and charge of the use of the yard tracks and of the movements of cars thereon, a complaint by him to the assistant yard-master, a short time prior to the accident, of he unlocked condition of the switch in question, and a promise to him by the assistant yard-master that the same should be blocked, is proper to be considered by the j ury upon the question whether the plaintiff, having knowledge of the defect, assumed the risk of injury therefrom by remaining in the employ of the company, although the assistant yard-master did not have “the direction, control or charge of the tracks or of their maintenance or repair. ” (Ehmcke v. Porter, 45 Minn. 338, distinguished. )
    5. Amount of verdict (§7,000), whether indicating passion or prejudice, considered.
    Error to the Court of Common Pleas of Lucas County.
   Bentley, J.

James H. Winslow recovered a judgment in the Court of common pleas against the Railway Company, for seven thous- and dollars, for an injury received while he was in the employ of the company, caused by getting his foot caught in a switch, at a point named, which switch was unblocked; and being held there, so that certain cars ran over his foot, causing him to be permanently lame and crippled.

As we understand it, the question as to whether the verdict was sustained by sufficient evidence, except, as to its amount, is not presented for our consideration. It is a case, however, where a sharp controversy is presented between the views of counsel on both sides, as to the duty of the railway company to cause the switch in question to be blocked at the place where the injury occurred. It is said that it appears that Mr. 'Winslow’s foot was caught at substantially the same place where the foot of one Calkins was caught and held until he was killed by the cars running over him, or injured so that he died, and the action regarding which injury, was decided by this court in January, 1892, and the judgment against the company, in that case, was affirmed. A large part of the record-is taken up with testimony bearing upon the question of the duty of the railway company to block the switch at that point where the movable rail comes up to the fixed rail as a part of the switch, in what is called a split switch. The movable rail, when the switch is closed, is placed and held tightly to the fixed rail, and when the switch is opened, the movable rail is removed by the action of the switch machinery, from three and one-half to four inches away from the fixed rail. The railroad company in this case, has strenuously urged that, as to a space of this kind, the statute requiring the blocking of guard rails, switches or frogs, does not and should not apply; that it is impracticable to block a space of this kind, and thus render it safer for the employes about the switch having duties to perform there ; and, furthermore, that even if the block might possibly be thought by some to render it safer for a switchman employed there, there would be far greater dangers .presented by reason of this blocking, to the trains which should pass over the switch, there being great danger of derailment by reason of the block and foreign substances getting between the block and the rails, so that when the switch is closed, or when the standard should indicate that it was closed, the end of the movable rail wmuld not be held tightly against the fixed rail, so that the flanges of the car wheels coming along there, instead of being deflected from the fixed rail on to the movable rail, would pass between the opening thus left — between the point of the movable rail and the fixed rail, and disastrous consequences would be likely to result. As we understand it, in this case, the question as to whether or not the evidence was sufficient to prove that the. company is in duty hound to block at this point, is not presented; but if we are in error as to that, we might say that there is testimony upon both sides of that question in this record here, the plaintifl producing some testimony that this place may be blocked safely and properly with due regard to the safety of trains, etc., and that in some cases, such places have in fact been blocked, and thus used by this'company. On the other hand, the company, by quite a number of apparently very intelligent and experienced witnesses, has given evidence tending to show that it is impracticable and dangerous, and that it should not be held ,to be the duty of the company to block at this point. Of course, with that condition of testimony, it is our duty not to interfere with the fiuding of the jury on that controverted question of fact. It is claimed, however, by counsel for the company, that the action of the court during the trial was erroneous, first, in admitting certain testimony that was incompetent and immaterial, and prejudicial to the railroad company; and secondly, the court erred in refusing certain requests preferred to it by the counsel for the company at the close of the evidence. The testimony which is alluded to is found on pages 68 and 69 of the record.

Before calling special attention to the character of that testimony, I will briefly notice the condition of the pleadings in respect to such matters. In the amended petition of the plaintiff, he departs from the allegation made in the original petition. In his original petition, he had alleged that he had no knowledge that this switch, at the place in question, was unblocked; had no knowledge of the danger to which its unblocked condition exposed him. By the amendment after-wards filed, he says that at some time prior to the accident, he did have knowledge that this particular place was unblocked. The allegation in- that respect being short, I will read it:

Plaintiff says at the time of the accident, he was ignorant of the fact that the frog was unblocked or unfilled, although some time prior to said occurrence, he had been cognizant of such fact, and had informed the company and-the officers thereof, who were his superiors and had charge of said yard, of such condition, and the promise had been made by his superiór'officers and representatives of the company in charge of the yard, to him, that the frog would be filled and blocked, and the plaintiff continued in the employ of the company thereafter on such promise.”

This is denied by the railway company in its answer. It will be.seen that, by this amendment, he admits that at some time prior to the accident, he had knowledge of this condition, but avers that at the time of the accident, he had no knowledge that the switch had remained unblocked and unfilled-; that is, between the time of his finding, or knowing that the place was unblocked and unfilled, and the time when he was injured, he had had the promise of the company’s officers that it should be fixed and filled. He had testified himself prior to the giving of the testimony on pages 68 and 69, by the other witnesses, that he had called the assistant-general yard master’s attention to this unblocked condition of the switch, and that that officer had promised him that he would have it fixed. He says himself, also, that a short time before the accident, he had seen some of the company’s, men who were engaged in blocking frogs and switches, at work about this place here in question, and that he supposed at the time of the accident that it had been in fact fixed ; that is, blocked or filled.

This accident occurred to him on the 25th of August, 1891, and the testimony objected to on pages 68 and 69, was the testimony of John T. Atkinson, a railroad employe. Mr. Atkinson says that at that time there were men who had come with blocks, and were engaged generally in putting in blocks along tie company’s tracks ; that at that time, they were working somewhere in the vicinity of the switch in question ; that he called the attention of the plaintiff below to that, and made the remark that “ they were doing a d — d good job up there,” or some such expression; and that is the testimony which the court allowed over the objection of the counsel for the railway company. Mr. Atkinson was not certain as to just when this occurred, but he gives it as his impression and belief that it was either in the latter part of July, or the first of August, 1891. He says that he thinks he left the yard on the 20fch of August, and that it must' have been prior to that time. His testimony is tolerably direct that it was either the latter part of July or the first of August; whether'he meant the first day of August, or the first part of August, is not entirely clear. Thecourtadmitted that upon this idea,tbat it was proper and competent for the plaintiff to say, notwithstanding he had prior knowledge that this place was unblocked, that such circumstances had occurred as led him to believe that it had been fixed, or perhaps that the promise of the assistant yardmaster had been complied with, and the court held that that would be competent testimony as bearing upon the question of the state of mind of the plaintiff at and just before the time that the accident occurred ; that is, that his belief in the matter, founded upon such circumstances as had come to his attention, might bear upon the question .of his own care, or want of care, in doing as he did on the occasion of the injury.

Now, in general, we think that that testimony would have been proper, if it had borne upon the real question. As it stands, it seems as. if it would have very little practical effect, because'the plaintiff testifies that he had made complaint of this unblocked condition of the switch several times to this yardmaster; that some days or weeks intervened between the occasion when he called the yardmaster’s attention to it, (on which occasion the yardmaster or the assistant yardmaster had promised that the matter should be remedied), and the time of the accident. His testimony indicates that the last of these conversations was comparatively a short time before the accident to him, and we should judge from the testimony that such a conversation probably occurred between the last of July or the first of August, and the accident. So that, if it were a mere matter of weighing the testimony, we should think that it would be fairly inferred from the record that this conversation with Mr. Atkinson occurred prior to the time when he had last called the assistant yardmaster’s attention to the defect; so that, if that were so, the testimony would have no real bearing upon the point actually in controversy. But the court admitted this, and as the time of this occurrence was not definitely fixed, we think it would not be allowable for a court of error to say that the introduction of this testimony was absolutely erroneous on account of the time. Peradventure, from all that may have been said by Atkinson and the other witnesses, this conversation may have been later than he was inclined to think it was, he not being definite upon it; and also, there was room for a divergence of idea as to just when the last conversation with the assistant yardmaster occurred ; so in view of these circumstances, we think it cannot be said that the introduction of this testimony was error, prejudicial to the plaintiff in error.

The other questions presented, as I say, relate to the instruction of the court to the jury. On page 168, it is shown that a request for an instruction to the jury was presented by the counsel for the defendant below in these words :

“2nd. If the jury find from the evidence in this case, that the plaintiff knew, or by the exercise of reasonable care and caution on his part, in the performance of his service, he should have known of the perils of the switch, and thereafter remained in the service of the company, he took upon himself and assumed the risks and perils of such service.”

If the court had given that request to the jury, it will readily be seen that all the contention of the plaintiff regarding any rights that he had, based upon this promise to remedy this defect, would have been of no avail. It leaves out of consideration anything that might be claimed for him in this regard, and if given by the court, would place the court in the position of holding that all the testimony bearing upon this whole question of the promise of the assistant yardmaster had no effect whatever in favor of the plaintiff. We think the court might have refused this request on that account; and then further, this request says that, “if the jury find from the evidence in this case that the plaintiff knew, or by the exercise of reasonable care and caution on his part in the performance of his service, he should have known of the perils of a slip switch, and thereafter remained in the service of the company, the took upon himself these risks,” etc.

Now, the plaintiff may have known, of course, he being chargeable with knowledge of the general perils of a slip switch, that there might be some dangers connected with it, .and yet, as to this particular one — as to the particular danger by which he claims to have been injured in this case, he might not be properly held to have assumed the risks. For instance, if it was a fact that this switch could have been blocked, and ought to have been blocked by the company, and although he knew at one time it was not blocked, and the assistant yardmaster promised that it should be blocked, and he, at any rate, supposing, and having reason to suppose, that at the time in question it had been blocked, this instruction would have been erroneous, as applied to this particular'case.

The 13th and 14th requests by counsel for the railway company, were also refused. The 13th reads as follows : “ The plaintiff complaining to the assistant yardmaster of the unblocked condition of the movable rail of the switch in question, and his, the yardmaster’s, promise to have the same blocked, will not bind the company therefor, unless it appears that the assistant yardmaster had the direction, control or charge of such track or tracks, and of their maintenance and repair.”

The 14th request is as follows: “The plaintiff complaining to the assistant yard-master of the unblocked condition of the movable rail of the switch in question, and his, the yardmaster’s, promise to have the same blocked, will not bind the company therefor, unless it appears that the assistant yardmaster had the direction, control and charge of such track or tracks, or of their maintenance and repair.”

It will be seen that the only difference between the 13th and 14th requests is made by the use of the connectives “ and ” and “or”, differently in one from that in the other. But the proposition presented by the company in these requests is this •• That even if the plaintiff had complained to the assistant general yard-master of this condition, and although he may have been the superior to the plaintiff as to matters of his duty in the yard ; and although the assistant general yard-master may have had general control of the cars and the switching of cars, and all the direction of the men employed at that work, yet a complaint to him and a promise by him to block this switch would in no wise bind the company, or operate to the advantage of the plaintiff in an action of this kind, unless the assistant yard-master also had the care and control of the tracks themselves, and the authority to keep them in repair. That is, he must either have both of these duties to perform — that is, he must have the control or charge of such track or tracks, and also of their maintenance and repair, or at least, it is claimed, he must have had control and charge of such track or tracks, or of their maintenance and repair. That unless he did, a complaint to him and a promise by him would be of no moment, 'and he would not thereby be representing the company as to the particular matter.

The case in the 45th Minnessota Reports, p. 338, is presented as sustaining the views of the railway company in this regard, and the 40th Ohio St., p. 148, is also another authority. The syllabus of the Minnesota case is as follows:

“A servant whose duties require him to work in a place known by him to be unsafe so that he would otherwise be taken to have assumed a risk, cannot relieve himself from such assumption of risk by showing a promise to make the place safe by one other than his master, unless that other person had authority to determine what should be done for the safety of those employed in the place and the duty to have it done.”

In that case the defendant was a single individual, having a mill about which the plaintiff in that case was employed; and there was a dangerous condition about the place; when certain parts or appliances were not in position, it left a hole in the floor, in a dark sort of place where a party passing along would be liable to fall in and be injured, and that some person in the employ of the mill owner, about the mill, in adjusting matters on a particular occasion, had left this place in the floor uncovered. The plaintiff in the case started to go. through that passage, and, it being dark, he had a lantern. His lantern went out before he had reached this dangerous place, but notwithstanding that, he continued on, and fell into this place, and was injured. It seems that he had been employed about the mill for quite a long time, and was perfectly familiar with his situation and the liability to this danger. There was a party employed about the mill making different repairs that he was ordered to make, and the plaintiff, prior to the accident, hqd called his attention to this, and suggested that something by way of a guard ought to be placed over this hole so that, if its covering should be removed, a person would not fall into it and be injured, and this party had indicated that he would attend to the matter, or do something of the kind. But the difference between that case and this as to facts and and rules applicable to it is this, in part, at least: The millwright or repairer, in the Minnesota case, who had suggested that he would fix that place, was not in any sense, or in any way or manner, the superior of the plaintiff in that ease. Neither had he any duty to perform as to making such repairs of his own motion; but he was simply to make such repairs as those in charge called his attention to from time to time and ordered him to do, so that as to the plaintiff he in no wise stood in the place of the common master, and did not represent the master. Now, in that case, with those facts presented, the court held that notice to such a man was not notice to the master, and did not excuse the person who had full notice and knowledge of the danger, from looking out for his own safety.

We think another rule applies to the case in question here, that is, that although the assistant yard-master may not have had. the duty to repair the tracks, or the general duty to supervise their construction or repair, yet in the use of them, he was the immediate superior of the plaintiff in this case. He says that in whatever he ordered the plaintiff to do in the line of switching and moving cars, etc., the plaintiff was bound to obey him, and that on the particular occasion in question, the plaintiff was obeying one of his direct orders.

Now, being the superior of the plaintiff, he had at least, control of the movements of the plaintiff, and in case his attention had been called to the dangerous position, and he directly sent the plaintiff there to work, he might have been guilty of negligence himself, and thus charged the company with the results of his negligence. It-was competent for him, in view of the dangerous situation which he knew, to have refrained from ordering the plaintiff .to perform work in the vicinity of this danger until this repair had been made, no matter by whom; and in case the facts are as the plaintiff claims, not only should he have refrained from ordering the plaintiff there, but he should, in- the general direction of matters about the yard over which he had full control, have so ordered things that in the course of the business which the plaintiff was called upon to perform, he would not necessarily and naturally be brought to do this.

We are clearly of the opinion that, although this man, himself, would not have been the man to actually put iu the block there, yet, having charge of all the operations of the yard which might subject the plaintiff to danger, it was his duty, having this information, and having made this promise, to see that it was done before he ordered the plaintiff there, and in this respect he stood in the.place of the master.

There are difficulties suggested that would arise in case the views of the defendant’s counsel should prevail here; that is to say, the plaintiff would be subject to the duty of either seeing some general track-master, or some section boss, or some person who had special charge of these matters, and whose duty it was to make repairs and changes; and the plaintiff being under the direct control of the assistant yardmaster, it might be exceedingly questionable whether there would ever come a time that the plaintiff would be justified in leaving his work and seeking other persons, who were perhaps not in that vicinity, and who might not be accessible to him anyway. But, however that might be, we think that the rules of law applicable to the case are, as we have stated, that it is not a question as put in these requests — whether the assistant yard-master was the person who should actually do this work, or whose duty it was to see that it was done; but that, being the immediate superior of the plaintiff in his operations around that yard, and having general charge there, and having made this promise, it was sufficient to excuse the plaintiff, if afterwards, in the exercise of proper caution and care himself, under all the circumstances, he remained in the general employ of the company at that place. That is, that under such circumstances, it did not necessarily become the duty of the plaintiff to quit the company's service; that he might still remain without actually taking upon himself the risks of this danger. There would still remain, however, the duty upon the plaintiff to exercise reasonable care and caution, under all the circumstauces of the case, and although he did not take the general risks which this general danger presented, of course, he could not himself be actually negligent upon any particular occasion and thus suffer injury, and still hold the company liable. But if these requests had been given, however cautious the plaintiff may have been upon the particular occasion in question, although he might have used extraordinary care and caution, he would have been held to have taken the risks of remaining in the employment of the company and of any injury resulting from this' defect.

The plaintiff on this particular occasion, it seems by the proof, did not voluntarily walk along at this dangerous place,, and without thinking of the danger, put his foot in the narrow place and thus get caught. But he was doing his work some distance from there — he thinks about twelve feet — before he gave the signal to the engineer to slack back that he might pull the pin in uncoupling the cars, a duty that he might have performed within a very short distance, probably a foot or two, without any considerable motion to one of the cars , but, contrary to his expectation, the engineer backed suddenly and violently, and the plaintiff, having hold of the car with one hand, was thus thrown in the direction of the movement of the train, and before he could right himself up,, he was over this particular dangerous place, and his foot went into the frog or switch and was caught.

E. D. Potter, Jr., for plaintiff in error.

Hamilton & Ford, for defendant in error.

There might still be left the question to the jury,-whether the plaintiff, in view of all that he knew and heard, was at that particular time in the exercise of due care and caution in doing that thing ; but that is not here presented. So, upon the questions that are presented and argued, finding against the contention of counsel for the plaintiff in error, the judgment will be affirmed.

The verdict was quite a large one, it is true, for the injuries sustained. It is a larger verdict than, in times past, we think would have been given ordinarily for such an injury. But it is not larger than quite a number of verdicts in substantially similar Jcases, and which we have been called upon to pass upon, and which we have affirmed. We think it can hardly be said that, in view of the serious and permanent injury, the jury in awarding seven thousand dollars, acted under the influence of passion or prejudice, or that they acted in such utter disregard of the testimony as to the extent of the injury and all, as would warrant us in saying that they acted under any misapprehension ; so that, as I said, the judgment will be affirmed.