text:
    ENFORCEMENT OF COMPLEX CONTRACT FOR. PURCHASE AND SALE OF LAND.
    Circuit Court of Madison County.
    Charles F. Sanford v. Vynal Harbage et al.
    Decided, March, 1912.

      Specific Performance — Failure to Establish a Resulting Trust Under the Contract of Purchase — Effect of Existence of Mortgages Not Due on the Day of Final Performance — Discharge of Mortgages— Provision for, by Decree, or by Willingness of Solders to Accept Payment — Sufficiency of Tender.

    1. The existence of mortgages on land involved in an action for specific performance does not bar relief, where willingness is shown on the part of the mortgagees to accept the amount of the indebtedness and cancel the mortgages.
    2. A petition in an action for specific performance, which alleges that the plaintiff is ready and willing to perform and has offered so to do but has been met by refusal and repudiation of the contract by the defendant, is not open to demurrer on the ground that no sufficient tender is averred.
    3. Under the contracts for the purchase and sale of land involved in the present case, the plaintiff is entitled to a decree of specific performance upon paying into court the amount of purchase money due.

      Murray cfi Emery, for plaintiff.

      Lincoln & McCloud, contra.
    At,lrf.ad, J.; Dustin, J., and Ferneding, J., concur.
    Heard on appeal.
   This action is one for a specific performance and involves two complex and dependent contracts.

On May 1, 1909, William Wilson and wife by written contract sold outright a portion and gave an option for the remainder of his farm of 435.15 acres to Yynal Harbage, his heirs and assigns.

May 7th Harbage complied with the condition of the option and thereby became purchaser by contract of the entire farm.

Five hundred dollars was required to be and was paid in cash on May 1st. The contract gave the purchaser the right to make advance payments to the amount of $7,000,* but the contract was to be finally complied with on March 1, 1910, by the payment of the balance of the purchase money by Harbage and the conveyance by Wilson by warranty deed to Harbage “or to his heirs, executors or assigns. ’ ’ The contract expressly provided that all liens were to’ be canceled and the premises were to be free and clear.

On May 7th, at the time the option was accepted, Harbage and Sanford entered into a written contract reciting the option and purchase of the Iiarbage-Wilson contract and stipulating for the purchase by Sanford of the easterly half of the 435.15 acres upon certain terms therein stated.

When the contracts were executed, there were three mortgages upon the real estate sold. Two were held by the Citizens Bank of South Charleston, both dated February 20, 1908, one calling for $17,000, due in five years, at six per cent, interest payable ananually, and with privilege of paying not exceeding one-fifth of the principal on any interest payment day, and the other calling for $5,000, due also in five years, at six per cent, interest payable annually, and with privilege of paying the entire principal on interest payment day in case the farm was sold within the preceding year.

The third mortgage was dated February 24, 1908, given to A. T. Cordray (and assigned to the Madison National Bank) to secure a note for $5,000 due in three years, with six per cent, interest payable annually.

The $500 paid to Wilson on May 1st was credited on a $2,000 note secured by mortgage on real estate in Clark county.

YThile the Harbage-Sanford contract was being written Sanford paid to the Madison National Bank the Cordray note and mortgage of $5,000 and the balance of $1,500 of the note and mortgage on Clark county lands, and took assignments thereof.

The 435.15 acre farm was somewhat irregular in form and had a frontage near the southwest corner upon the National pike and also a frontage on the westerly side upon the Seaman country road.

The contract provided for the naming of a surveyor by agreement to survey the dividing line. Surveyor Asher was according to the evidence so designated, and made notes of what he considered a practical division of the farm. Sanford and also Asher made efforts to have a date fixed for the survey. Nothing was accomplished until on February 24th, when Harbage called Asher by ’phone and fixed the following morning as the date for the survey. Sanford had previously made an arrangement to deliver stock at a distant point but upon notice requested Asher to attend and make the survey and stating that he, Sanford, would abide by the result. Asher and Harbage appeared at the time fixed. Harbage was unwilling to have Asher proceed in the absence of Sanford and Asher did not feel willing to do so. Harbage remained a short time and then left. Sanford came shortly after Harbage had gone, but nothing was done toward making the survey. .

On February 28th, the day before the contracts were to be performed and eight days after interest day, Wilson, in pursuance of an arrangement made by him and Harbage, went to the Citizens National Bank of South Charleston and gave a check upon the Madison National Bank of London for the amount of the $5,000 note and mortgage and for the sum of $3,400 of the principal of the $17,000 note and mortgage.

On March 10th, Wilson and wife conveyed to Celeste Harbage (who is the wife of Vynal Harbage) sixty acres off the west side and to Vynal Harbage the balance of the farm at the price agreed upon in the contract of May 1st. The only departure from the exact terms of the contract was the conveyance of the sixty acres to Celeste Harbage and the conveyance subject to the mortgages which were assumed by Harbage as part of the purchase money.

Sanford, on the date for final performance, had made arrangements for the funds necessary to comply with the contract and had further arranged with the Citizens Bank 'of South Charleston to send the notes and mortgages to London for payment and cancellation and was ready to surrender and cancel the note and mortgage held by him, and the offer to comply was communicated to Harbage who claimed to be willing but unable to comply because of the existing mortgages.

Many interesting questions are involved upon which we express briefly our views.

The evidence is not sufficiently clear and convincing to move a court of chancery to declare a resulting trust upon the first contract in favor of Sanford. Whatever interest and rights Sanford has are governed and controlled by the terms of the contract of May 7th.

Wilson was bound by the contract of May 1st. He contracted thereby to convey to Harbage or “to his heirs, executors and assigns, ’ ’ but that clause did not bind Wilson to make conveyance of a part or all of this real estate to Sanford. The effect of the second contract wms to create an equitable assignment pro tanto. Such partial assignment, however, based upon adjustment of consideration and other questions was not binding upon Wilson, except to call upon him after notice of Sanford’s equity to comply fairly with his contract with Harbage.

It was stipulated in the Iiarbage-Sanford contract, “that if by reason of the failure of the title to said real estate or if for any other reason not within the control of said party of the first part (Harbage) that he should not receive said real estate from the said William Wilson as provided in his contract with him, ’ ’ then said Sanford to have no right of action for damages under the second contract.

It may, therefore be conceded that both under the law as well as by the express terms of the contract Harbage would be relieved from the Sanford contract, if performance of the first contract failed from want of title or any other cause without his fault.

It is clear, in fact not disputed, that the conveyance to Celeste Harbage of the sixty acres off the west side does not of itself affect the question here.

We are of opinion that the survey provided for contemplated the fixing of a boundary line, from the contract. Sanford was diligent in trying to bring about the survey and is not chargeable with its failure. The line of division under the contract is a north and south line so drawn as to divide the farm equally and may yet be surveyed under order of the court.

Counsel for defendant contend that the existence of mortgages upon the premises, not due or capable of discharge at the date fixed for final performance, defeats the right of the vendee to relief. In the same connection it is urged and insisted upon that Wilson’s conveyance to Harbage subject to the mortgages does not amount to a conveyance by Wilson “as provided in his contract, ’ ’ and that, therefore, the Harbage-Sanford contract can not be executed. The following cases are cited: Lucas v. Scott, 41 O. S., 636; Savings Bank Co. v. Parisitte, 68 O. S., 450.

We think these cases are distinguishable in two vital respects:

(1) The contract in each of the cases cited was defeated with out fault or procurement of the vendor by a third party holding an inconsistent title.

Here the mortgagees were willing to release upon satisfaction of their claims. This is shown by the testimony of the mortgagees, who are disinterested and reputable, corroborated by the fact that they accepted $8,400 after interest day although not legally bound. Harbage arranged for Wilson to make this payment. There is no doubt from the evidence but that the whole of the debt would have been accepted if tendered. The default here was clearly that of Harbage and Wilson who had expressly contracted to give a clear title. There is no principle better settled and more universally recognized, both at law and in equity, than that a party should not be allowed to take advantage of his own wrong.

(2) The encumbrances here, unlike those in the eases cited, are capable of direct compensation in money.

There is no substantial difference between a vendee assuming a mortgage as part of the purchase money and his paying the purchase money in full and having the mortgage discharged therefrom.

This view finds support in 36 Cyc., 639. Among the cases cited in this authority is that of Megibben, Administrator, v. Perrin, 49 Fed., 183, by Judge Sage, in which the following is laid down:

“A vendee can not avoid a specific performance of Ms contract because of a mortgage on the lands when it appears that an agreement has been made for the discharge thereof immediately upon the transfer, which discharge can be provided for in the decree. ’ ’

There are cases from other states cited, and in some of these cases it appears that both parties knew of the existence of the mortgages at the time of the contract. The case of Rife v. Lybarger, 49 O. S., 422, and some other Ohio cases indicates the practice of courts of equity in providing in the decree against encumbrances. See also, Pomeroy on Specific Performance, Section 342; Grimshaw v. Hart, 6 Rob. (La.), 265; Rinaldo v. Hausman, 52 How. Pr. (N. Y.), 190.

The existence of the mortgages upon the premises in view of the willingness of the mortgagees to receive the debt and cancel the mortgages does not bar relief.

It is urged that there was no mutuality in the contract of May 7th as between Harbage and Sanford. The want of mutuality is based’ upon two propositions:

(1) That there is no express promise on the part of Sanford to pay the consideration.

We are of the opinion that Sanford’s obligation to pay arises as a necessary inference.

(2) That Sanford was not bound to take .the real estate subject to the mortgages.

It was, however, the duty of Wilson and Harbage, so far as they could, to remove the mortgages. The evidence shows clearly that they were in a position to do so. They could, therefore, have removed the mortgages and enforced the contract. Their failure to do so because they do not wish to do so, does not show a lack of mutuality in the contract.

It is insisted that no sufficient tender has been averred and proven to support the action. The leading cases of Brock v. Hyde, 13 O. S., 306, and Brewing Co. v. Maxwell, 78 O. S., 54, are decisive. The petition avers that Sanford was ready and willing, to comply, and offered to do so, but was met by refusal and repudiation of the contract on the part of Harbage. This averment makes the petition good against demurrer.

The evidence shows clearly that on March 1st Sanford was ready and willing to perform and had offered to do so; that although not required by his contract to do so, Sanford had arranged for the payment and release of the mortgages and he made demand on Harbage for compliance on his part. We can not reconcile the evidence upon any other theory than that Harbage, in substance and effect, refused to perform and denied the validity of the contract.

Sanford, and his brother and Mr. Murray so testified, and Harbage himself admits, that he told Sanford that he could not comply on account of the mortgages on the land. Reducing this to a candid analysis, we are forced to the conclusion that no compliance was intended and that a further tender was thereby dispensed with.

The failure of Sanford to bring the tender into court does not bar relief in equity.

Sanford’s rights attached as against Harbage as an equitable assignment pro tanto of the original contract and are superior to the dower rights of Mrs. Harbage. It is proper, therefore, to decree a removal of this cloud.

We are, therefore, of the opinion that plaintiff’s right to a decree for a specific performance is clear, and it will be awarded upon plaintiff paying into the court the purchase money due under the contract. The plaintiff asks the court id case the description furnished in the petition is not accurate to require a competent surveyor to make the survey. This may be ordered in the decree and made returnable in ten days.

Decree accordingly.


source: Caselaw Access Project

author: Dustin, J.

license: Public Domain

text:
    AID FROM RAILWAY VOLUNTEER. RELIEF DEPARTMENT NOT A BAR. TO RECOVERY FROM COMPANY FOR. INJURIES.
    Circuit Court of Greene County.
    The P., C., C. & St. L. Railway Co. v. George W. Sheets.

    Decided, January, 1912.

      Contracts Between a Railway Company and Its Employes — Exempting Company from Liability on Account of Injuries — Invalid in Its Application to Interstate Carriers — Nor is Workingmen’s Compensation Act Applicable — Proximate Cause — Burden of Proof — Section 9015.
    1. Membership by an employe in the voluntary relief department of a railway engaged in interstate commerce, and the receipt by him of benefits from such department on .account of injuries received in the course of his employment, is not a defense to an action against the company by such employe for recovery of damages on account of injuries so received.
    2. Where both the cause of action and the receipt of benefits occurred after the enactment of the federal law; making void any contract, regulation or device having as its purpose the enabling of any common carrier to exempt itself from liability on account of injuries sustained by employes, the federal law controls as to such receipt of benefits. P., C., C. & St. L. Railway Co. v. Cox, 55 Ohio State, 497, distinguished.
    3. The Ohio workmen’s compensation act does not prevent recovery under the federal law for injuries received by employes of railways engaged in interstate commerce.
    4. Section 9015, General Code, which shifts the burden- of proof upon a defendant railway company as to notice to the company of the defect alleged to have been the proximate cause of the injury complained of, is a mere rule of evidence, and is applicable to an accident under the federal law notwithstanding the cause of action arose in another state.
    5. The plaintiff below, a railway brakeman, was jolted from the ladder of a freight car and lost both legs by being run over by the car following. The defect complained of was that the sill of the car, used by brakemen as a step below the last rung of the ladder, had been dented on one side from two to three and one-half inches by a heavy blow and the toe hold reduced by that amount, Verdict was returned in the common pleas in the sum of $30,000. The trial judge granted a remittitur of $7,500.

      Held: The defect complained of was, in the opinion of a majority of the court, the proximate cause of the injury, but the amount of the recovery was grossly excessive, and a further remittitur of $8,500 is allowed, making the judgment as- entered $14,000.

      E. P. Matthews, for plaintiff in error.

      Charles Darlington and Marcus Shoup, contra.
    Allread, J.; Ferneding, J.; concurs; Dustin, J., dissents in a separate opinion.

       Affirmed by the Supreme Court on an equally divided vote — Donahue, Johnson and O’Hara for affirmance; Shauek, Spear and Davis, contra.

   George W. Sheets as plaintiff brought suit and recovered judgment in the court of common pleas for personal injuries.

The amount claimed in the petition was $30,000 and a verdict was returned for the full amount.

Upon hearing of a motion for a new trial the court suggested a remittitur of $7,500. The remittitur was made, and thereupon the court refused a new trial and rendered judgment for the amount of the verdict so reduced. The cause is brought here by petition in error. '

Sheets was an employe of the railway company, engaged as brabeman in interstate service, and on September 9, 1909, near Richmond, Indiana, while in the discharge of his duty, fell from a ladder on the end of a freight car and was run over by the cabin ear, crushing both legs, and requiring amputation.

The negligence charged in the petition is the use and operation of a defective car.

The plaintiff below rests his cause of action upon the act of Congress approved April 22, 1908, regulating railway employers’ liability.

The railway company by special defense sets forth Sheets’ membership in the voluntary relief department of the railway company, and the receipt of benefits from the date of injury until the beginning of this suit in May, 1910. The membership began in April, 1906, and the contract provided that receipt of benefits should be held a waiver of a right of action for personal injuries.

The trial court sustained a demurrer to this defense and this ruling, is assigned as error.

The correctness of this ruling involves the construction and effect of the following section of the act of Congress above referred to:

“Section 5. That any contract, rule, regulation or device whatsoever, the purpose and intent of which shall be to enable any common carrier to exempt itself from any liability created by this act shall to that extent be void; .provided, that in any action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance or relief benefit or indemnity that may have been paid to the injured employe or the person entitled thereto on account of the injury or 'death for which said action was brought. ’ ’

It is urged on behalf of the railway company that Railway Company v. Cox, 55 O. S., 497, rules the present ease. The court there construed the state act of April 2, 1890 (87 O. L., 149), and held that the contract of the relief department was not within the statutory prohibition. The sum and substance of the decision is that the inhibition of that act went to the ‘ ‘ contract, agreement” and “stipulation,” while the effective bar of the action arose not from the contract, but from the voluntary election of remedies after the cause of action arose.

The act of Congress has a much broader scope. It invalidates not only the contract, but any “rule, regulation or device whatsoever” intended to relieve the carrier from “any liability” created by the act.

The authority of Railway v. Cox is not, therefore, decisive of the construction of the more comprehensive terms of the act of Congress.

The rule of public policy announced in the Cox case, as to compromise and settlement of causes of action, was laid down and applied in view of doubtful terms in the act under consideration, and should not be applied where the intent is clear, and especially is that true in the construction of an act of Congress in harmony with the public policy announced by the Supreme Court of the United States. Railroad Company v. McGuire, 219 U. S., 545.

The act of Congress has been so construed in various cases in the federal courts. Porter v. B. & O. Ry. Co., 37 Wash. Law Rep., 466; Goldenburg v. B. & O. Ry. Co., 37 Wash. Law. Rep., 2; McNamara v. Wash. Ry. Co., 38 Wash. Law Rep., 343.

It is urged that the contract being prior to the act of Congress the act can not operate ex post facto.

The answer to this contention is found in the case of Railway Company v. Cox, supra, holding that it was not the contract, but the election of remedies, that barred the action.

Both the cause of action and the receipt of benefits occurred after the enactment, and the act, therefore, controls as to the force and effect to be given to the receipt of benefits.

Moreover, the contract of membership is indefinite as to duration and depends upon continuation of employment and payment of dues. The contract has no higher status in respect to regulations thereafter adopted than the contract of employment itself.

When the act of Congress was adopted, a rule of public policy was thereby established, and the continuation of the contract of employment and the receipt of dues thereafter must be held to have been done with reference to the public policy so established. Railroad Co. v. Lightlizer, 168 Ind., 438; Hamilton v. Railroad Co., 145 Ia., 431.

The workman’s compensation act (102 O. L., 524), providing for a benefit fund contributed by both employer and employe in a proportion fixed therein and payable by election in lieu of an action for damages against the employer, does not affect the present action, because (1) the act of Congress is superior to state regulation in cases of interstate service; (2) the act is subsequent to the cause of action here.

The demurrer to the second defense was, therefore, properly sustained.

The jurisdiction of the state courts to enforce the act of Congress in an appropriate case is established by authority. Thorn ton on Employers’ Liability Act, Section 1058; cases cited.

It is insisted that there is no proof of notice to the company of the defect nor want of care in inspection.

The obvious character of the defect and the circumstances of its use may justify a presumption of notice. But aside from the question of express proof, we are of opinion that Section 9015, G-. C., shifting the burden of proof upon the issue of notice to the railway company, being a mere rule of evidence should be accepted in the courts of this state, although the action is founded upon the act of Congress and the cause of action arose in another state. Penna. Co. v. McCams, 54 O. S., 10.

The defect relied upon by plaintiff was a dent or crushing in of the steel sill upon the end of the car from which plaintiff fell. The sill formed the base of the ladder and was used in passing to and from the ladder and as the bottom step. The dent was deepest at or near the left stile and extended under the rungs a considerable portion of the way, was from two to three and a half inches deep according to different witnesses at the deepest point, and caused the upper surface of the sill to bulge upwardly-

In the amended petition the plaintiff claims in substance that while he was descending the ladder and while the train was in motion, the engine suddenly and without warning gave a quick and sudden jerk, causing his feet to slip off the rounds of the ladder, and, because of the defect in the sill or platform, to fall to the track and be injured. He avers that if the platform had been in proper condition it would have afforded protection and a foothold and prevented the fall. It is also averred that the defendant did not use reasonable and ordinary care in operating said defective car.

It was claimed that the defect was so shallow and so insignificant in extent as to have little or no effect in its use, and it is especially urged that the defect was not the proximate cause, and that if the sill had been perfect it could not have saved him from the fall.

It is insisted that the proximate connection between the alleged cause and the. in jury must be definitely and clearly established, and that a verdict and judgment should not be allowed to rest in conjecture, citing, R. R. Co. v. Marsh, 63 O. S., 263; R. R. v. Andrews, 58 O. S., 426.

In the Andrews case, quoting from the syllabus, it is said:

‘ ‘ In the absense of direct evidence in its support, an allegation that one sustained injuries by reason of the negligence of the defendant, is not sustained by proof of circumstances from which, the fact that his injuries were so sustained is not a more natural inference than any other.”

Judge Shaucb in the opinion says:

‘ ‘ Certainly an allegation of fact may be established by circumstantial evidence, but the circumstances to have that effect must be such as to make the fact alleged* appear more probable than any other. The fact in issue must be the most natural inference from the facts proved.”

This ease merely restates the rule of circumstantial evidence, based upon the admitted facts in that case and the prohable deductions to be drawn therefrom. See Railroad Co. v. Crawford, 24 O. S., 631.

The question of fact, therefore, is, does the evidence here make it sufficiently probable that the defect was responsible for the injury.

The sill in its normal condition extended along the end of the ear, about eight inches wide, and the outer edge about two and a half to three inches beyond the outside line of the rungs of the ladder. The cabin car had the usual platform and railing. There was an open space*of two feet between the sill of the freight ear and the platform of the cabin ear. Through this space the plaintiff passed in his fall.

The circumstances of the plaintiff’s descent and fall from the ladder are meager and lacking in detail. It may be safely assumed that Sheets was upon the second round from the bottom when he reached for and secured his lantern. From his testimony that he then “started to go further down” and that he “was just in the act of taking hold of the round of the ladder and started to take another step when the sudden jerk came,” it is insisted by counsel for plaintiff that be had stepped down to the first round and was in the act of stepping to the base or sill. If this view be taken in connection with the character of the dent as shown by the witnesses for plaintiff, then the finding that the defect was the proximate cause would not be remote nor improbable.

The defendant, however, contends that from Sheets ’ own testimony and the admission of the petition, it appears that both feet were upon the round, and by the jerk of the train slipped therefrom and that in the fall the only chance of a foothold would be the catching of the toes of the shoes upon the projecting part of the sill if it had been- perfect.

Conceding the facts of this contention to be true a majority of the court are of the view that the jury may reasonably have found in harmony with plaintiff’s contention, that there was a sufficient probability in favor of the defective sill being the proximate cause, and that a contrary view is not so manifest as to justify the court in overthrowing the verdict.

This ease differs from both the Marsh and Andrews case in respect to issues involved. In the Marsh and Andrews cases the quantity of evidence went to the question of negligence. In this ease the negligence is clearly established but the controversy is over the proof of proximate cause, and in the establishment of proximate cause no unusual weight of evidence should be required to facilitate the escape of the negligent party from the results of his negligence.

It was within the court’s discretion to permit an inspection by the jury of the injured parts, and the failure of one juror to inspect both injured limbs is not prejudicial error.

The primary facts in respect to the injury should go to the jury and from them the jury applying common knowledge may find the probabilities. The- competency of opinion evidence depends upon its being directly applicable to the facts of the case and should carry some superior source of knowledge to that of the ordinary jury. A careful analysis of the opinion evidence and the foundation laid therefore justified the exclusion. The fact that the company’s agent, Monroe, went to Sheets to endeavor to effect a compromise was brought out in cross-examination and was properly admitted as reflecting upon the probability of his testimony as to Sheets’ admissions. It was, therefore, a subject of comment by counsel. Still the inference drawn by counsel that it was an admission of liability was improper. The instruction of the court to disregard the argument in this respect cured the error.

The charge of the court taken as a whole was a fair and full exposition of the law and free from prejudicial error.

The verdict for $30,000, was, however, grossly excessive. It is by far larger than any we have met with in the entire circuit. We do not underestimate the injuries, including the pain and suffering. But, it must be remembered that this was not a. wilful injury nor was there gross or wanton negligence. The question of liability for ordinary negligence is close, and is sustained by a majority only of the court. It is, therefore, a case for compensation only. The compensation, too, under the act of Congress, is subject to mitigation for contributory negligence.

The plaintiff’s wages averaged sixty to sixty-five dollars per month. The record does not disclose his age, but we have made the estimate on the basis of twenty-five years. Assuming the wage loss to be total, the present worth of annuity affording that income during the balance of his life, based upon annuity tables at 5 per cent., would be $6,400, and allowing for usual promotion would hardly exceed $10,000. The wage loss is, however, not total, and a proper deduction may be made from that to compensate for the amount he is capable of earning in his present physical condition. In addition, however, to compensation for loss of wages, the plaintiff is entitled to compensation for pain and suffering. This amount is always difficult to determine and within proper limitations should be left to the jury. We can not, however, reconcile the total amount returned upon any reasonable calculation or basis of compensation, yet the majority of the court are of the opinion that it does not necessarily appear that the amount of the verdict is the result of passion and prejudice on the part of the jury.

The trial court ordered a remittitur of $7,500, and we are of the opinion that a still further remittitur of $8,500 should be entered, leaving the sum of $14,000. If the plaintiff desires to enter this remittitur the judgment for the amount so reduced will be affirmed; otherwise the judgment will be reversed and the case remanded for a new trial.

Dustin, J.

(dissenting).

In my view the facts of this case entirely preclude recovery on the part of Sheets.

According to his own testimony, he was climbing down the ladder on the rear end of a moving freight car, and had reached for and seized his lantern which he had left on the top of the car, when a sudden jerk of the train threw him off the ladder; he fell to the ground and was run over by the following car. In falling, he touched nothing but the draw-bar.

It appears, mathematically, that at the time he was jarred from his position, his feet could not have been on a lower rung then the second from the bottom, being thirty-four inches from the sill. It appears also that the sill complained of, where not indented, does not extend over 2*4 inches beyond the face of the rungs.

The claim of counsel (alluded to in the majority opinion) that Sheets was stepping from the last rung to the sill is wholly unsupported. I think, by the evidence, the measurements of the man and the ladder entirely disprove it.

To me it is inconceivable that a man falling from the second rung, while the train was moving forward, could have caught himself on the tips of his toes, on the sill, even if the latter were in perfect condition. As it was, the evidence shows that the sill was only indented for 3% inches from the left side. It was perfect throughout the remainder of the width of the ladder. Under any conditions the left foot only would have had a narrower sill on which to alight. The right foot would have caught the full width.

But, to have the full width of 2% inches on which to catch himself and put his toes, Sheets must have fallen perpendicularly with mathematical exactness, like a plummet, from the edge of the second rung, after the jar and while the train was in motion. The jar must have been sufficient to take him to the edge of the rung and no farther, giving no more momentum to his body; and no allowance made for the action of the train. It seems to me impossible. I can not believe that there is a gymnast in the world who could accomplish the feat in the daytime. Anyhow, it is the height of improbability.

The cause of the injury must be attributed to the greater, hot the lesser, probability. R. R. v. Andrews, 58 O. S., 426.

But, what right has Sheets, under the circumstances, to complain? He was not using or attempting to use the sill for the purpose for which it was constructed, viz., as a step to or from the ladder. It was not built to catch falling bodies. And it is of its insufficiency only as a safety platform in case of a fall that he complains.

If he had gone to the bottom of the ladder, and loosened his hold above, expecting to find a sill of the usual width, and not finding it, injury had resulted, his case would have been far different. Under the circumstances I think the defect in the sill can not be held to be the proximate cause of the injury.

The verdict itself shows that the jury was governed by passion and prejudice. The sum of $30,000 was entirely unreasonable. The trial court cut it $7,500 and the majority of this court has taken off $8,500 more.

Sheets is not helpless. He is able to earn money in other occupations.

Under the authority of Street R. R. v. Rahmann, 22 O. S., 446-9, the court should have set aside'the verdict absolutely.