text:
    CONTRIBUTORY NEGLIGENCE — GRADE CROSSING-QUESTION FOR JURY.
    [Portage (7th) Circuit Court,
    February Term, 1905.]
    Cook, Burrows and Laubie, JJ.
    H. L. Hine, Admr. v. Erie Railway.
    Contributory Negligence in Crossing Railroad Track, a Question for Jury, When.
    Whether or not a traveler upon a public highway who is killed at a grade crossing of a steam railroad is guilty of contributory negligence depends upon the circumstances of the particular case; and where the railroad company is guilty of negligence in unnecessarily obstructing the view of an approaching train which did not blow the whistle or ring the bell, the company at the same time permitting a locomotive with a brilliant headlight to stand on a side track within 150 feet of the highway, headed toward it, and blowing off steam; the traveler not being able to see the approaching train by reason of the obstructions until his horses are on the side track and are also so frightened by the noise of the escape of steam and the glare of the headlight from the locomotive, on the side track as to require the attention of the traveler to control them: Held, it cannot be said as a matter of law that the traveler is guilty of contributory negligence in no.t seeing, or in going ahead after seeing the approaching train, but the question of his negligence should be left to the determination of the jury.
    Error to Portage common pleas court.
    Ingei 3 & Webb, for plaintiff in error.
    I. T. Siddall, for defendant in error.
   COOK, J.

The decedent, George Wilkie, was killed at a grade crossing over the tracks of the Erie Railroad Company in the village of Mantua, this county. The time of the accident was after 6 o ’clock in the evening and quite dark. Main street on which the accident occurred runs north and south and at right angles with the tracks and is about fifty feet wide. At the point of the accident the company has two main tracks, one for east bound and the other for west bound trains, and also a long switch or siding.

Wilkie was driving south with two horses hitched to a large farm wagon. The highway at this point was down grade southward, and his horses were spirited and afraid of the cars. Between the side track, which was the north track, and the first main track there was a space of fifteen feet and between the two main tracks a space of thirteen feet. As you approach the crossing from the north there was on the west side of the street a large building, formerly used as a warehouse by the company, but at the time of the accident and for many years previously had not been used for any purpose. This building stood on the right of way of the railroad company and within eight feet of the north rail of the side track. West of this building was a high embankment, so that it was impossible for a traveler on the highway to see an approaching train from the westward until within at least eight feet of the north rail of the side track.

At the time of the accident there was a locomotive standing on the side track on the east side of the highway about 150 to 200 feet from the same. This locomotive was headed towards the highway, and had a brilliant headlight and was blowing off steam. The train that killed the decedent approached from the west. It was coming into the station which was immediately east of the highway and was running from five to ten miles an hour. A number of witnesses testified that they heard no whistle, nor heard any bell, or any other warning of the approach to the highway or station by the train.

The company had an electric bell at this crossing that worked automatically for the purpose of warning travelers on the highway of the approach of trains. This electric bell did not ring upon the occasion of the accident, and was evidently out of order. There is no evidence that the decedent knew of this electric bell. The evidence showed that in coming down the street the horses driven by Wilkie were “on the bit,” as it was called; that is, he was holding them with a tight rein standing in the middle of the wagon. Some of the witnesses testified the horses were trotting; one witness said, more prancing than trotting, as they approached the side track. All the witnesses testified that as Wilkie approached the crossing he kept a strict lookout at the locomotive standing on the siding east of the highway, apparently holding hard on the horses, but one witness testifies that as he passed the building on the west he looked westward up the tracks. ' There was no evidence that he stopped his team. A number of witnesses testified that, seeing the approach of the train from the west, they hollowed to him, but there is no evidence that he heard them. It was this train that struck the team, killing him and the horses.

At the close of the evidence for plaintiff showing this state of facts the trial judge withdrew the evidence from the jury and dismissed the petition of plaintiff, and the error and the only error assigned is, that the trial judge erred in so doing.

That the railroad company was guilty of negligence and gross negligence must be conceded. . It permitted an old unoccupied building to remain on its premises, with no apparent use, for years, entirely obstructing the view to the westward until the traveler’s horses were on the side track. It permitted a locomotive to stand very close to the highway on the east side with a glaring headlight and blowing off steam that necessarily would frighten the horses of the traveler. It permitted. its train to approach the highway and station without blowing the whistle or sounding the bell, as under the law it was required to do. Recognizing the dangerousness of this crossing it put up an' electric bell to warn travelers of the approach of trains and yet permitted the bell to become out of ordér, thereby making it a snare rather than a warning.

But it is said, admitting all this, yet the decedent was guilty of such negligence that absolutely precluded him from recovering.

It must be admitted that, under ordinary circumstances, the traveler is guilty of negligence when he is caught at a crossing and this court has been assiduous in upholding this theory; but there are cases in which it is not so and the court is not justified in saying as a matter of law that the traveler is guilty of contributory negligence. Where the crossing is of such character and the circumstances surrounding the traveler at the time of the accident of such a nature as to put him in a perilous situation and divert his attention, then a different rule applies.

In the case of Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700], it was held:

“When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and cireumspectibn that prudent persons would exercise where no danger is present; nor can it be said that, as matter of law, he is guilty of contributory negligence because he fails to make the most judicious choice between hazards presented, or would have escaped injury if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what he would be likely to do, or might reasonably be expected to do in the presence of ■ such existing peril, and is one of fact for the jury.”

In the opinion Chief Justice Williams says, page 362:

“Another ground urged for the reversal of the judgment is, that the evidence, without conflict, establishes negligence on the part of the defendant in error which contributed to the injury he sustained. Without entering into a general review of the evidence relating to the manner in which the injury was caused, or the conduct of the defendant in error, it is sufficient to say that, without his fault, and while in the performance of his duties in handling the car in question, he found himself in a situation of danger on account of a defective ladder attached to the car which, at the time, he was attempting to ascend in order to manage the brakes as his duties required. The ladder had one broken round and was loose and shaky; but that was not discovered by him until after he had got up on it and was in the effort to reach the top of the car. While engaged in that effort, and in a very brief timé after he stepped on the ladder, he was thrown to the ground and injured. It is claimed that when he discovered the danger he was in, he should have stepped to the ground, and that he could have done so with safety. By his failure to do that, it is contended, he brought about the injury, . or at least contributed to produce it.

When confronted with his peril, two ways of escape would naturally be suggested: one to leap from the car to the ground, and the other to do as he did, strive to reach the top of the car. It is not certain that the adoption of the former course presented by the alternative would have proven better than the latter; it might seem so from a deliberate survey of the situation after the disaster had occurred; but when it is considered that it occurred in the darkness of the night, while the car was in motion, without opportunity of accurate observation of the condition of the ground, it is little more than conjecture that the defendant in error could, or would, by leaping to the ground, have escaped injury. And, in the exigencies of the situation in which he was placed, it could neither be expected nor required that he should exercise the same deliberate judgment that prudent persons would exercise where no danger is present, nor make the most judicious choice between hazards. The question in such case is, not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of the existing peril; and is one of fact for the jury. Measuring the conduct of the defendant in error by this rule, the jury have found he was not guilty of contributory negligence, and our duty does not lead us into an inquiry to ascertain on which side the preponderance of the evidence may be found. ’ ’

In the case of Balt. & O. Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816], it is held:

“Where the testimony of the plaintiff raises a clear presumption of negligence on his part which directly contributed to his injury, and no testimony is offered by him tending to rebut that presumption, it is the duty of the trial court to sustain a motion by the defendant made at the conclusion of plaintiff’s evidence, to direct a verdict, and a refusal to sustain such motion is error. ’ ’

Judge Spear in the opinion says, referring to the case in hand, page 158:

“The case is wholly dissimilar from the reported cases where a close question of fact appears and the judgment of a jury is required to determine it. As in Hart v. Devereux, 41 Ohio St. 565, where the deceased was driving a pair of spirited horses over a crossing at the side of which stood a locomotive blowing off steam which frightened the horses, and so engaged the driver’s attention that he did not observe the approach of an express train coming rapidly and without warning from the opposite direction, the view down the track being obscured by buildings, and was killed by the express. As, also, in Railway v. Snell, 54 Ohio St. 197, where there was a conflict in the evidence as to whether the injured party was exercising his faculties of seeing and hearing, and it was held a proper question to be submitted to the jury. ’ ’

In the case of Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]; it is held:

“3. A person about to cross the track of a street railway at a street crossing is bound to exercise care proportioned to the danger to be avoided and the consequences which might result from the want of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only ordinary care which is required — that which might reasonably be expected of persons of ordinary prudence. Ordinary care does not require him to anticipate negligence on the part of those operating the railway. And while he should use his faculties' for his own protection, it is not negligence per se for him to omit to look in both directions for the approach of a car. Whether it is or not negligence depends upon the circumstances.
“4. Where the evidence of the plaintiff shows actionable negligence on the part of the company, and the question of contributory negligence of the plaintiff depends upon a variety of circumstances from which different minds may reasonably arrive at different conclusions as to whether there was contributory negligence or not, the question should be submitted to the jury under proper instructions; and it is error in such ease for the court to direct a verdict for the defendant.
“5. And where in such ease the question as to whether or not the plaintiff exercised his faculties of seeing and hearing before attempting to cross is in issue, and the oral evidence tends to show that he did, while circumstantial evidence tends to disprove that claim, a condition is presented involving such variety of circumstances as .makes it proper to submit the question to the jury.”

In the opinion Judge Spear says, page 201:

“The ground upon which the common pleas directed a verdict was that the plaintiff’s evidence disclosed contributory negligence of such a character as to preclude a recovery. In other words, the holding was, that, as matter of law, the plaintiff was guilty of cohtributory negligence. If the plaintiff’s conduct, as shown by the undisputed facts, left no .rational inference but that of' negligence, then the ruling was right, but if the question of contributory negligence depended upon a variety of circumstances from which different minds might arrive at different conclusions as to whether there was'negligence or not, then the ruling was wrong. This follows from the rule given in Ellis v. Insurance & Tr. Co. 4 Ohio St. 628. Applying the doctrine of that case, the motion involved an admission of all the facts which the evidence in any degree tended to prove, and presented only a question of law, whether each fact indispensable to the right of action, and put in issue by the pleadings, had been supported by some evidence. If it had been, no matter how slight the evidence, the motion should have been denied, because it was the right of the plaintiff to have the weight and sufficiency of his evidence passed upon by the jury. But if he had failed to give evidence tending to establish any fact without which the law would not permit a recovery, he had nothing to submit to the jury, and a question of law only remained. We are aware that this rule is much criticised, and plausible arguments against its reasonableness have been adduced, but it has been followed uniformly, and should be applied until definitely overruled, or changed by legislation.
“The plaintiff was himself bound to use ordinary care, such degree of care as a man of ordinary prudence commonly uses under like circumstances; care proportioned to the danger to be avoided, and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances under which it was to be exercised. If all people exercised the greatest possible caution in approaching and crossing railroad tracks, accidents would be much less , frequent than they are; but the law does not require extreme care. Such care, and such only, as ordinarily prudent persons could reasonably be expected to exercise under the circumstances is the full measure. In order, therefore, to judge whether or not a fair question was presented regarding plaintiff’s contributory negligence we must inquire into the circumstances as disclosed by the evidence he introduced.”

Under these rules which are the settled ones in this state, we think, the question of the contributory negligence of the deceased in this case should have been left to the jury. He had a right to rely on the fact that the company in the management of its trains would not be guilty of such gross negligence as not to sound the whistle or ring the bell in approaching the crossing; that it would see to it that its electric bell would be in order and give warning ta the traveler on the .approach of trains and particularly so when the crossing was in the condition it was that night. Furthermore his horses must have been upon the side track before he could have seen the approaching train and, under the circumstances, very probably could not have heard it at all. When his horses’ feet were upon the side track his attention necessarily — with a spirited team frightened by the glare of the headlight and the noise of escaping- steam — -would be directed to the locomotive on the side track, not knowing whether it was about to move or not. When he looked to the west if he did so he might have seen the approaching train and, if he had then stopped, probably he might have saved his life; possibly he might not.

Was the going ahead under such circumstances such evidence “as left no rational inference but that of negligence?” “Might different minds reasonably arrive at different conclusions as to whether there was contributory negligence or not?”

He may have misjudged the distance of the approaching train in the glare oi; the headlight and the confusion surrounding him. If he stopped, the locomotive on the side track might move down upon him. His team, already restless and frightened, might become unmanageable. Who can judge with certainty what a person unaccustomed to such situation should or would or ought to do under such circumstances ?

“It cannot be said as a matter of law that he is guilty of contributory negligence because he failed to make the most judicious choice between hazards presented, or would have escaped injury if he had chosen differently. The question in such case is, not what a careful person would do under ordinary circumstances, but what he would be likely to do, or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury. ’ ’

Judgment reversed and cause remanded for a new trial.

Burrows and Laubie, JJ., concur.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    INJUNCTION.
    [Geauga (7th) Circuit Court,
    January Term, 1905.]
    Laubie, Cook and Burrows, JJ.
    Hannah M. Parsons v. Ohio Pail Co. et al.
    Twjunction, When Properly Refused.
    An injunction will not be granted when it is unconscionable to grant the same, even though a legal right is about to be, violated; and where the legal right arises out of a decree of court, rendered by mistake, an injunction is properly refused.
    Error to Geauga common pleas court.
    N. H. Bostwick, for plaintiff in error.
    W. G. King, for defendant in error.
   COOK, J.

The action below was for an injunction to restrain the Ohio Pail Company from cutting and carrying away the soft lumber growing upon the land of plaintiff in error. The court below refused the injunction.

Plaintiff in error, Hannah M. Parsons, brought an action for divorce and alimony in the common pleas court of Geauga county. The husband was the owner in fee of two tracts of land, one of thirty-one acres, and the other of fifty acres, situated in said, county. Mrs. Parsons in her petition described these two tracts of land and in hér petition asked for alimony out of the same. About three months after the commencement of her action, the husband in the presence of the wife, she making no objection, sold all the growing soft timber upon the two parcels of land to the Ohio Pail Company. The company did not pay for the timber at the time, but did so a short time afterwards by giving two checks to the husband, he signing a receipt for the same upon the back of the checks which fully set out a memorandum of the contract of sale — the wife being informed of such payment.

Some time after the sale of and payment for the timber and the wife’s knowledge of said payment, the court determined the suit for divorce and alimony and allowed the wife as her reasonable alimony the fifty-acre tract of land absolutely in fee simple, without reserving the growing soft timber, and ordered the husband to execute a deed to her for the same, or the decree was to operate as such deed, which decree of the court was duly entered upon the journal. After the adjournment of the term at which the decree for alimony was made, the pail company attempted to remove the timber and the action for an injunction was commenced.

The answer of the defendant pail company sets forth that while the decree for alimony gave the fifty-acre tract to the wife, Hannah M. Parsons absolutely, as her alimony, yet, in the suit for alimony, evidence was introduced by both the husband and wife showing the value of both tracts of land, with the timber growing on the same, and the value, divested of such timber, and it was conceded in such action that the timber had been sold to the pail company in the presence of the wife, and paid for by it to the husband. The answer sets forth further that the judge who tried the alimony case in making up his finding and decree, took into consideration the amount of money the husband had received for the timber, some $900, and charged the same to him, and that the thirty-one-acre tract, divested of the timber and the amount of money that the husband had received, together with the thirty-one-aere tract, equaled the fifty-acre tract divested of the timber and that the intention of the judge was to give husband and wife equal amounts, or divide the property in two parts, giving each an equal share, there being no other property; but that the actual intention and finding of the judge was not put in the decree.

These averments of the answer are fully sustained in this action for an injunction, as shown by the testimony,of the trial judge in the alimony case, and the questions now made are: First. Should this evidence have been admitted to sustain these allegations of the answer, and especially that of said trial judge; and second, Was the court justified under this evidence in denying the injunction?

It must be conceded that ordinarily the doctrine of lis pendens applies to alimony cases, and that any change made in real estate after the commencement of the action has no effect as against the plaintiff when the premises are fully described. Conceding that the doctrine of lis pendens does apply to this case, yet it seems to the court that tho injunction was properly refused. The decree as entered upon the journal did not speak what the court actually did. ■ It is true that the journal entry by inadvertanee did net state that the wife was to have the land subject to the contract of the husband with the pail company. The entry no doubt was prepared by counsel for the wife, without call-mg the attention of the judge to its contents. Had it been presented to him, unquestionably he would have noticed the mistake, and we are of opinion that it was just as much an accident or mistake that could be relieved against as if he had entered the actual conclusion he had reached upon his trial docket. The law would certainly be very weak and impotent if the courts had no power to prevent such a palpable injustice and wrong as would be perpetrated in permitting the plaintiff to receive that which she is clearly not entitled to by the mere accident, and mistake of the. trial judge and her counsel.

We are of opinion that a bill in equity could be filed and successfully prosecuted by the Ohio Pail Company, which was not a party to the alimony action for relief against the wrongful effect of the judgment or that the enforcement of the same as against the plaintiff’s rights would be enjoined, and if that be so, the evidence was clearly competent.

In Freeman, Judgments Sec. 500a, it is said:

“Mistake, Accident, and Surprise. In treating of the vacation of judgments upon motion, we considered the fact that a judgment was procured by mistake, accident, or surprise as a ground of relief therefrom. Substantially the same grounds of relief may be urged with success in equity, except when refused on the ground that an adequate remedy existed at law and no reason is shown why it was not pursued. Mistakes of fact, whether made by the courts or by one of the parties, have been successfully employed as grounds for obtaining the interposition of courts of equity, and securing the relief of the party injured by the mistake. Thus a suit was brought on a note, and the defendants made no defense, and ‘the attorney who was attending the case made a mistake in calculating the interest on the note, and when the case was called for judgment, the judge, without calculating the amount, asked the attorney, who, being under a mistake himself, replied $405.55, and the judgment was rendered by mistake for that amount, when it should have been for $507.80.’ The plaintiff, discovering the mistake after it was too late to correct it on motion, brought a suit in equity to correct it, by compelling the defendant to pay the amount left out by mistake; and it was held that equity had, under the circumstances, .jurisdiction to grant the relief sought. A like decision was made when it appeared that a jury omitted to allow the plaintiff interest to which he was entitled. It seems to be well established by the authorities that a mistake in calculating the amount due by which the judgment was entered for a wrong sum may be corrected in equity. An error in computation is not necessarily attributable to negligence, for ‘the most careful and expert calculators sometimes make mistakes.’ So where a judgment is occasioned by' the mistake of the judge, the party against whom it was entered may have relief in equity. In Georgia, a meritorious bill of exceptions was dismissed because of a mistake in a date made by the certifying judge. The supreme court of the state, in passing upon this case, said:
“ ‘Courts of equity are open to grant relief in cases of great injustice and wrong arising from mistake without negligence and fault upon the part of counsel or parties. The dismissal of the case was owing to the misdate of the judge in his certificate. It was the duty of the judge to have put the correct date. The fault was not one for which the law should punish parties, and for which, under the rules, the case was dismissed. It was not beyond the reach of a court of equity to interpose and take jurisdiction of the parties and subject-matter; and if it appeared there was merit in the case, and injustice would result from the act or mistake of the judge in the premises, it was the duty of a court of equity to enjoin the collection of the judgment, and stay proceedings until a fair and full hearing upon the merits had been had.’ ”

To the same effect is Beach, Mod. Eq. Sec. 658.

The Ohio Pail Company was not a party to the suit. It was only effected in this case by the rule of lis pendens and it would not be held to the same strictness as a party to the suit; as to what it might prove by parol evidence. Clapp v. Banking Co. 50 Ohio St. 528, 540 [35 N. E. Rep. 308].

If it was within the power of the Ohio Pail Company to correct the judgment or enjoin its enforcement by a bill in equity filed for that purpose, how much stronger the reason why an injunction should not issue to enforce the judgment, founded as it is upon a conceded mistake leading to injustice and wrong. A court of equity sits as a court of conscience and will never grant an injunction when it is unconscionable to do so, even though the plaintiff may show a legal righthat is about to be violated. Beach, Mod. Eq. Sec. 643.

In Powers’ Appeal, 125 Pa. St. 175 [17 Atl. Rep. 254; 11 Am. St. Rep. 882], it is held:

“If an injunction is prayed for where, upon consideration of the whole case, it ought not in good conscience to issue, a mere legal right in the plaintiff will not move the chancellor.”

In the opinion Mr. Justice Williams says, page 255:

“The maxim of the common law that wherever there is a right there is a remedy for its infraction has never been adopted by courts of equity. A party whose right is clear may sleep upon it until his demand becomes stale. He may look on while valuable structures are erected, when he , might successfully object, and remain silent until large sums have been expended or important intervening interests have grown up. In such cases the fact that he might have objected at the outset will not avail him. A suitor must not only appear in a court of equity with clean hands, but he must come with reasonable promptness, in good faith, and with a just and equitable demand; otherwise the conscience of the chancellor will not be moved. If an injunction is prayed for where, upon a consideration of the whole case, it ought not in good conscience to issue, a mere legal right in the plaintiff will not move the chancellor. ’ ’

To have granted an injunction in this case the judge sitting as a chancellor would have assisted in perpetrating an injustice that arose out of a mistake in the rendering and entering of the judgment in the alimony case. It would have been against good conscience and it was properly refused.

Judgment of the court of common pleas affirmed.

Laubie and Burrows, JJ., concur.


author: MARVIN, J.

text:
    BUILDING CONTRACTS — MISTAKE.
    [Cuyahoga (8th) Circuit Court,
    November 7, 1904.]
    Hale, Marvin and Winch, JJ.
    Cleveland (City) v. C. N. Griffen et al.
    Equity may Cobbect Mistakes in Estimates of Civil Engineeb, when.
    A court of equity has power to correct mistakes in the estimates of a civil engineer, notwithstanding the contract under which the work was being done provided that the estimates should be final and conclusive. But as a general rule, in the absence of an intention to defraud, or bad faith on the part of the engineer, his estimates under such a contract are final.
    Error to Cuyahoga common pleas court.
    N. D. Baker, C. J. Estep, H. F. Payer, G. S. Adams and N. J. Carey, for plaintiff in error.
    Albert Lawrence and Brady & Cashman, for defendant in error:
    Where, by the terms of a contract, the estimates of an engineer are to be conclusive, a court of equity will correct his mistakes. Mansfield & S. By. v. Veeder, 17 Ohio 385; Balt. & O. By. v. Stankard, 59 Ohio St. 224 [46 N. E. Rep. 577; 49 L. R. A. 381; 60 Am. St. Rep. 745] ; Easton v. Canal Co. 13 Ohio 79; Mundy v. Bailway, 67 Fed. Rep. 633 [14 C. C. A. 583; 31 U. S. App. 606]; Kane v. Stone Co. 39 Ohio St. 1; North Lebanon By. v. Grann, 33 Pa. St. 530 [75 Am. Dec. 624]; Faunae v. -Burke, 16 Pa. St. 469 [55 Am. Dec. 519]; Hamilton v. Insurance Co. 136 U. S. 242 [10 Sup. Ct. Rep. 945; 34 L. Ed. 419],
    Parties cannot by contract take away the jurisdiction of the courts in such cases, and that the attempt to do so is void. Balt. & O. By. v. Stankard, supra; Supreme Council of Order of Chosen Friends v. Forsinger, 125 Ind. 52 [25 N. E. Rep. 129; 9 L. R. A. 501; 21 Am. St. Rep. 196] ; Whitney v. Accident Assn. 52 Minn. 378 [54 N. W. Rep.. 184]; Home Ins. Co. v. Morse, 87 TJ. S. (20 Wall.) 445 [22 L. Ed. 365]; Stephenson v. Insurance Co. 54 Maine 55; Mentz v. Insurance Co. 79 Pa. St. 478 [21 Am. Rep. 80]; Seed v. Insurance Co. 138 Mass. 572; Hamilton v. Insurance Co. 136 TJ. S. 242 [10 Sup. Ct. Rep. 945; 34 L. Ed. 419] ;■ Guaranty Tr. & Safe Dep. Co. v. Bailway, 139 U. S. 137 [11 Sup. Ct. Rep. 512; 35 L. Ed. 116],
   MARVIN, J.

The plaintiff in error was the defendant below. The defendants in error were plaintiffs below. The terms plaintiff and defendant as used in this opinion refer to the parties as they stood in the original case.

The plaintiffs are parties doing business under the firm name of Griffin, Norton & Co.

The defendant is a municipal corporation organized under the laws of Ohio.

On July 12, 1899, the plaintiff, C. N. Griffin, and the defendant, the latter acting by and through its proper officers and proceeding in all respects according to law for that purpose, entered into a contract in writing under which the said Griffin w'as to construct a masonry arch at Edgewater park in said city. By the terms of said contract the said Griffin was to do all the work and furnish all the machinery, tools and materials, and do everything requisite to the complete construction of said arch, in the manner and under the conditions specified in the contract and in accordance with plans and directions made and to be made from time to time by the defendant, and the said Griffin was to receive therefor from the defendant different prices for the different parts of the work, such various prices being specified in the contract.

Among the prices so specified are the following:

“3. For all'stone masonry in the work, except the arch masonry, including the furnishing of all materials, tools and labor, the sum of $7.50 per cubic yard.
“4. For all arch masonry in the work, including the furnishing of all materials, tools and labor, forms and centers, the sum of $11.50 per cubic yard. ”

The sáid Griffin assigned to the plaintiffs all his rights under this contract.

The work was fully completed. Payments were made by the defendant from time to time, upon estimates furnished by thé engineer acting for the city.

On October 26, 1901, the proper engineer furnished a final estimate for the work done and materials furnished in the construction of said arch.

Said estimate fixed the amount of stone masonry in said arch at 3,734.76 cubic yards, and the amount of arch masonry at 644.46 cubic yards. As to these estimates the plaintiffs complain that, though the aggregate amount of masonry is properly given, the division between the two classes is wrong.

Other items in this final estimate were complained of by the plaintiffs, but no claim is here made that the judgment of the court below as to such items was erroneous.

The petition prayed for a correction of the so-called final estimate of the engineer, that an accounting might be had upon such corrected estimate, and that plaintiffs have judgment for the amount found due them upon such accounting.

The result in the court of common pleas was a finding that 939 cubic yards classified in the estimate as stone masonry should have been classified as arch masonry, thus increasing the amount of arch masonry to 1,583 cubic yards and reducing the amount of stone masonry to 2,795.76 cubic yards, an accounting then being taken and fixing the amount due plaintiffs upon such amended estimate.

As the price of arch masonry was fixed in the contract at $11.50 per cubic yard while stone masonry was fixed at $7.50, the court therefore added to the engineer’s estimate on this item $4 per yard on 939 yards, and the only question before this court is whether the court erred in making this addition.

One of the items in the contract hereinbefore mentioned reads:

“8. To prevent all disputes and litigation, it is further agreed by and between the parties to this contract that the engineer shall be referee, in all cases, to decide upon the amount, quality, acceptableness and fitness of the several kinds of work and materials which are to be paid for under this contract, and upon all questions which may arise, relative to the fulfillment of the contract on the part of the contractor, and his estimates shall be final and conclusive, and such estimate and decision, in case any question shall arise, shall be a condition precedent to the right of said contractor to receive any money under this agreement.”

A further provision of the contract, under the heading “general requirements,” is as follows:

“It is further mutually agreed that whenever, in the opinion of the engineer, the said contractor shall have completely performed this contract, the said engineer shall proceed, with all reasonable diligence to measure up the work, and shall make out the final estimate for the same, ’ ’ etc.

It was in pursuance of this clause of the agreement that the estimate herein first mentioned was made out.

On the part of the defendant (plaintiff in error), it is urged that under this contract plaintiffs were absolutely bound by the final estimate of the engineer, no claim being made that there was any purpose or intention on his part to defraud the plaintiffs, or that he acted in bad faith in making his estimates. Authorities are cited in support of this contention. Among them is the case of Martinsburg & P. Ry. v. March, 114 U. S. 549 [5 Sup. Ct. Rep. 1035; 29 L. Ed. 255]. The provisions of the contract in that ease are substantially as the one under consideration here. In that case there was no allegation in the bill that the engineer had made the final estimate provided for, but the court say, on page 553:

“Upon the supposition that the engineer made such a certificate as that provided by the contract, there is no allegation that entitled the plaintiff to go behind it; for, there is no averment that the engineer had been guilty of fraud, or had made such gross mistake in his estimates as necessarily implied bad faith; or had failed to exercise an honest judgment in discharging the duty imposed upon him. The first count of the declaration was, therefore, defective for the want of proper averments showing plaintiff’s right to sue on the contract, and the demurrer to that count should have been sustained. ’ ’

From this case and the cases cited in its support, it seems clear that if the 'rule there laid down is to be applied to the present case, the plaintiffs must fail and the judgment of the court of common pleas must be reversed on that ground, but our own Supreme Court seem to have modified this rule somewhat.

In the case of Balt. & O. Ry. v. Stankard, 56 Ohio St. 224 [46 N. E. Rep. 577; 49 L. R. A. 381; 60 Am. St. Rep. 745], suit was brought by the parents of Michael Stankard who, having be.en an employe of the railroad company, died, and the claim was made that he was such employe at the time of his death. Suit was to recover for death benefits provided under certain regulations of the company. The claim was presented to the superintendent of the relief department, who did not allow it but referred it to the advisory committee, who rejected it because of his failure to report in accordance with the regulations. On the part of the company it was urged that the suit was barred under rule 11 of the relief department, which reads, page 229:

“ ‘All claims of members of the relief feature, their beneficiaries or other representatives * * #' arising under these regulations, and all questions or controversies of whatsoever character arising in any manner, or between any parties, or persons, in connection with the relief department or the operation thereof, whether as to the construction of language or meaning of the regulations, or as to any writing, decision, instruction or acts in connection therewith, shall be submitted to the determination of the superintendent of the relief department, whose decisions shall be final and conclusive thereof, subject to the right of appeal in writing to the committee * * * within thirty days after notice to the parties interested in the decision.
“ ‘When an appeal is taken to the-committee, it shall be heard by them without further notice at their next stated meeting * * * and the decision arrived at thereon by the committee shall be final and conclusive upon all parties, without exception or appeal.’ ”

As to this the court say:

“The reference of the claim to the advisory committee * * *- was the equivalent, and took-the place of an appeal.”

On page 231 of the opinion, this language is used:

‘ ‘ A long line of decisions hold that parties cannot by contract take away the jurisdiction of the courts in such cases, and that the attempt to do so is void.” (Citing several eases.)

Again, the court say, page 233:

‘ ‘ Such contracts are in their nature only applicable to cases wnerem it becomes necessary to fix some facts, leaving the question of law to be settled by the courts upon proper proceedings. The ultimate question to be determined — the liability or nonliability of the parties — must be left to the courts. The construction of a written contract is a question of law for the court, and a provision in the contract that the construction of such contract, or the meaning of rules or regulations, shall be finally determined by some designated person, is void, because the cour,t cannot be robbed of its jurisdiction to finally determine such questions.
‘ ‘ In insurance and other like eases, where the ultimate question is the payment of a certain sum of money, certain facts may be fixed by a person selected for that purpose in the contract, but the ultimate question as to whether the money shall be paid or not, may be litigated in the courts, and a stipulation to the contrary is void. The fixing of the particular fact by the person or persons named in the contract, and in the manner therein provided, is usually a condition precedent to the bringing of an action on the contract, and the performance of such condition should be averred in the petition, or some good excuse given for its nonperformance. * * *
‘ ‘ In the case at bar, the claim having gone through the course provided by rule 11, and having been rejected, the parents had the right to go into a court of justice and ‘establish their claim; and in the trial, the fact that the claim had been so rejected was not a bar to a recovery. In so far as rule 11 attempts to cut off the right of action in court, it is null and void.”

The syllabus in this case, page 244, reads:

“One of the rules in the relief department of a railroad company, provided that all claims of beneficiaries should be submitted to the determination of the superintendent, whose decision should be final and conclusive, unless appealed to the advisory committee, and in case of such appeal, the decision of the committee, should be final and conclusive upon all parties without exception or appeal: Held, that after the rejection of a valid claim by the advisory committee, the beneficiary could maintain an action in the court for the recovery of the money due thereon, and that such rule is not a bar to the action. ’ ’

The case of Mansfield & S. C. Ry. v. Veeder, 17 Ohio 385, is, as we think, much like the case at bar, and there the court held that:

“When, by the terms of the contract between a railroad company and a contractor, the estimates of the engineer are to be binding upon the parties, a court of chancery has power to correct the mistake of the engineer. * * *
“In construing a contract # * * the court will use the terms employed by the parties according to their popular signification, if to apply them according to technical or scientific rules would defeat the manifest intention of the parties.
“Words of doubtful meaning will be so construed as to carry out the apparent intention of the parties.”

If, then, in the estimate of the engineer he was clearly mistaken in his estimate, the court below committed no error in correcting such mistake.

A part of the contract was the specification and plans submitted to the contractor on which he made his bid. The structure contracted for was a bridge supporting the tracks of the L. S. & M. S. Ry. over a public driveway called Edgewater boulevard. The top of this was, of course, to be level, and there was to be an archway under this bridge of such dimensions as to provide for a broad carriage or driveway. The plans show that the greater part of the masonry was to be of stone, but the archway, from a point about--feet above the earth on either side, and extending from side to side was to be of brick, faced at the ends with stone, using the word “ends” as meaning that part facing one as he approached the arch on the driveway from either direction. At the ends the arch on either side of the driveway, using the word, “ends,” as meaning that part of the arch nearest the ground, was to be stone masonry, the stones so cut as to'continue the curved line of the brick arch for several feet. Further down toward the earth inside of such curved line of the stone, however, to be stone masonry, the stones cut with the upper and the lower sides parallel, and laid up against the curved line, formed of stone, already mentioned, the lines of these stones next the driveway being perpendicular to the surface of the earth.

From this somewhat imperfect description it will be seen that a part of the masonry laid in arch form was to be of brick and a part of stone; that some of the stone masonry so to be laid was to be the facing of the brick work, and a part was to be that which supported the brick arch, at its lower ends. The engineer allowed as arch masonry all the brick work of the arch and so much of the stone work as constituted the facing of the brick work at outer ends. The correction made by the trial court allowed all the stone work which was laid in arch form with the curved line, as already mentioned, as arch masonry.

The only contention between the parties here is as to which was right in this allowance.

Nothing was allowed by the trial court as arch masonry which was not laid with the curved line for its inner or under surface.

It will be noticed that the contract recognizes that a part of the stone masonry shall be arch masonry, because the third item of prices reads:

“For all stone masonry in the work, except the arch masonry * * * the sum of $7.50 per cubic yard.”

And the fourth item reads:

“For all arch masonry $11.50 per cubic yard.”

It is clear, then, that whatever arch masonry was to be laid, whether of brick or stone, was to be paid for at the higher rate.

On the part of the city, however, it is urged that taking the entire contract and considering the use of the terms, “arch masonry” and “stone masonry,” as understood by builders and engineers in a contract like this, no part of the stone work, aside from the facing, should be estimated as arch masonry. As bearing upon this construction, atten tion is called to the estimates made by the engineers and submitted to the contractor before the contract was made of the probable aniount of the several kinds of work to be done. These estimates show stone masonry 3,600 yards, and arch masonry 800 yards. These estimates were given as approximate only, but were given for contractors to have an approximate idea of the amount of work to be done, and for use as a* comparison of the bids. It is noticeable that these approximations are much nearer to the amounts allowed by the engineer in his final estimate than to the amounts allowed by the court, the approximate estimate made in advance being:

Arch masonry...................... 800 yards.
Final estimate..................... 644.46 yards.
Stone masonry.....................3,600 yards.
Final estimate......................3,774.74 yards.
While the amount allowed by the court was:
On the arch masonry...............1,583.46 yards.
On the stone masonry..............2,795.70 yards.

These facts are somewhat significant and tend to show that these approximate estimates were based upon the same construction of the terms, “arch masonry” and “stone masonry,” as given in the final estimate. ,

It is clear that ”arch masonry” and “stone masonry” are not necessarily different things. ' “Stone masonry” may or may not be “arch masonry” and “arch masonry” may or may not be stone masonry. This is recognized in the third item of prices to be paid as hereinbefore quoted, viz.: ‘ ‘ For all stone masonry in the work except arch masonry, ’ ’ etc. The contract provides that “the arch” except at the ends shall be of brick masonry, and the claim is made and the evidence tends to' establish, that the “ends” of the arch are the faces seen by one approaching in either direction on the driveway which passes under the arch. It might be, however, that in ordinary language the words, “ends of the arch, ’ ’ might be used to designate that portion on either side of the driveway which comes nearest to the earth.

It is provided in the contract that the cement used in the arch masonry shall be of the best quality of Portland cement. The stone masonry was to be laid in American hydraulic cement, and it is urged that this language indicates that the terms, “arch masonry” and “stone masonry, ’ ’ are used in contradistinction in the contract.

It, in connection with other parts of the contract, we think clearly indicates that the contract was not carefully drawn, and that words were used sometimes with strict accuracy and sometimes with less regard to their technical meaning.

It is clear that the expense of putting in stone masonry in arch form was fully as great as putting in brick masonry in the same form and was so much greater than putting in stone masonry with vertical joints that it can hardly be supposed that in making this contract for a structure which was to contain nearly 50 per cent more of stone masonry laid in ' arch form than of brick arch masonry, and more than one-third as much stone masonry in this form as there was to be of stone masonry laid with vertical joints, the distinction in price of four dollars per yard was to be simply between the masonry laid in brick with a comparitively small amount of stone work for the facing of the brick and the entire body of the work other than this facing, which was to be done in stone.

We reach the conclusion, therefore, that there was no error in the judgment of the court of common pleas, and such judgment is affirmed.

Hale and Winch, JJ., concur. .


author: PARKER, J.

text:
    COURTS —COSTS AND FEES — MORTGAGES — EXECUTORS AND ADMINISTRATORS.
    [Lucas (6th) Circuit Court,
    1904.]
    Parker, Hull and Haynes, JJ.
    Walter J. Sherman v. George W. Millard.
    1. Appellate Court under Lan. R. L. 10318 (R. S. 6726) must Render Judgment Lower Court should have Rendered.
    An appellate court, in reversing an order of distribution made by the probate court in an action commenced therein by an administrator to pay debts, should, under Lan. R. L. 10318 (R. S. 6726), either make the order of distribution, or, in remanding the case to the probate court, specifically indicate the items to which the fund for distribution should be applied. A judgment reversing the order of distribution and remanding the case with directions to distribute the fund “according to law” and “in accordance with Lan. R. L. 9706 (R. S. 6165)” is. too general in its nature in that it does not specifically indicate what judgment the probate court should render, notwithstanding the statute referred to prescribes how distribution shall be made.
    2. Attorney Fees, Costs or Administration, etc., cannot be Paid under Lan. R. L. 9706, 9730 (R. S. 6165, 6188) out of Fund Realized from Sale of Land to Pay Debts, when.
    Neither the attorney fees of an administrator in an action commenced by him to sell real estate to pay debts, general costs of administration of the estate, nor premiums due a surety company upon the administrator’s bond, are included in the costs and expenses “of the sale” under Lan. R. L. 9706 (R. S. 6165), and cannot, therefore, be allowed prior to the claim of a first mortgagee by the probate court in making an order of distribution of the fund realized from the sale; nor can they be allowed as “extraordinary” expenses under Sec. 6188 Rev. Stat.
    3. Administrator must Preserve Priority of Liens in Fund Realized from Sale of Lands to Pay Debts, etc.
    The priority of the lien of a first mortgage must be preserved by the administrator in the fund realized from a sale of the real estate, when such lien is set up in the action commenced by the administrator to s?ll the real estate to pay debts; but, as the administrator is a trustee for unsecured creditor only, where such mortgagee fails to set up his claim, his lien is thereby cut off, and he thereupon becomes a general creditor: and the administrator owes such mortgagee no duty to see that his lien is preserved.
    4. Administrator Assumes Risk of Fund Realized from Sale being Sufficient to Pay Attorney Fees, etc.
    The administrator, in commencing an action to sell to pay debts, real estate which is encumbered by a mortgage, assumes the risk of the fund realized therefrom being insufficient to pay his own and his attorney’s fees and the court costs incident to general administration. Such fees and costs cannot be paid from the fund to the prejudice of the mortgagee.
    5. Administrator not Necessary Party in Foreclosure Proceedings, when.
    An administrator of a deceased mortgagor is not a necessary party to a mortgage foreclosure proceeding, although he may be a proper party in case the equity of redemption is of any value; and, as a purchaser at foreclosure sale is subrogated to all the rights of the mortgagee, where the value of the property proves less than the mortgage' debt his title cannot be impeached by general creditors mor by the administrator in the absence of fraud or collusion in the proceeding and sale.
    Error to Lucas common pleas court.
    B. A. Hayes, for plaintiff in error.
    I. I. Millard, for defendant in error.
   PARKER, J.

In 1899, Oscar Decker being the owner of two acres of land, mortgaged it to secure a promissory note of $500.

In January, 1902, Decker having died, George W. Millard was appointed administrator of his estate, and the land mortgaged was appraised at $700.

In April, 1902, the administrator filed his petition in the probate court for the sale of the two acres of land to.pay debts.

Sherman, the holder of the note and mortgage, having been made a party defendant, filed his cross petition asking that the mortgage be foreclosed and his rights protected.

In October, 1902, a decree was rendered finding due to Sherman on the mortgage $500 and interest, to the decedent’s widow $---- in lieu of dower and $300 for year’s support, and ordering a sale of the two acres of land.

In May, 1903, the land was sold in pursuance of the decree at public sale for $600 and the proceeds of sale ordered to be distributed as follows:

1. Court costs in sale , of property...............$ 35 09
2. Courts costs in administration of estate........ 15 40
3. Administrator’s percentage of proceeds of sale.. 36 00
4. Attorneys fees and Surety Company’s bond of administrator ............................... 60 00
To Sherman on mortgage.......................... 431 51

To this order of distribution the defendant Sherman excepted and, to obtain its reversal or modification, filed his petition in error in the common pleas court.

That court reversed the judgment of the probate court and remanded the case to that court with directions to distribute the proceeds “according to law” and “in accordance with Sec. [Lan. 9706] 6165 Rev. Stat.,” but did not indicate specifically what judgment the probate court should render.

Sherman now prosecutes error in this court, claiming that the common pleas court should have rendered the judgment which the probate court should have rendered and that this court should now do so; and that the proper order would be to omit the second and fourth items and pay on the mortgage $528.91 instead of $453.51.

Laning R. L. 10318 (R. S. 6726) reads in part as follows:

“When a judgment or final order is reversed, either in whole or in part, in the common pleas court, * * * the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment.”

In Minnear v. Holloway, 56 Ohio St. 148 [46 N. E. Rep. 636] the court says on page 154, in speaking of orders and judgments made on hearings, on affidavits or evidence, for injunctions, or for the vacation of an injunction, or the dissolution of an attachment, or motions for the appointment or discharge of receivers, or motions for the vacation of an order of arrest in a civil action and other like motions and proceedings in which no issues of fact are made up by the pleadings, and there is no trial in the legal sense of that term:

“In such cases the higher court, upon reversal of the order made on the hearing in the court below, proceeds to make such order as it thinks the court below should have made, or remands the case to the court below with instructions to make such order. ’ ’

See also Davis v. Turner, 69 Ohio St. 101 [68 N. E. Rep. 819], decided October 27, 1903.

In the case at bar the order reversed was an order distributing the proceeds of the sale, and the appellate court should either have made an order of distribution, or should have indicated to which items the funds to be distributed should be applied.

As Lan. R. L. 9706 (R. S. 6165) prescribes how the proceeds of real estate so sold shall be distributed, the order of the common pleas court that they shall be so distributed is correct as fax as it goes; but it is too general. Presumably the probate court had endeavored to follow this section in its order which was reversed, but had fallen into error in its attempt; therefore the order of the common pleas court should have been specific so that a like error might not occur again, and so that nothing would remain to be done in the court below but to execute such specific order of distribution.

This section provides that “the money arising from the sale of real estate shall be applied in the following order:

“1. To discharge the costs and expenses of the sale and the percentum and charges of the executor or administrator thereon, for his administration of the same. «
“2. To the payment of mortgages and judgments. * * *
“3. To the discharge of claims and debts, in the order mentioned in this title. ”

That order is found in Lan. R. L. 9629 (R. S. 6090).

Under Lan. R. L. 9706 (R. S. 6165), the mortgagee claims that the costs and expenses and charges of the administrator are confined to those arising out of the sale, and dó not include those which arise in the general administration of the estate.

As to the attorney fees, in the case of Thomas v. Moore, 52 Ohio St. 200 [39 N. E. Rep. 803] it is held 'that administrators are personally liable for services of attorneys employed by them. On page 206 the court holds that attorney fees are governed by Lan. R. L. 9629 (R. S. 6090) referred to above. Such contracts do not bind the estate. Money paid therefor by the administrator, if approved by the court, may be allowed in the accounts of the administrator, but there is no authority for allowing them in an order of distribution on a sale of real estate as prior to the claim of a first mortgagee.

It would be grossly unjust to compel the mortgagee to pay attorney fees of the administrator for foreclosing his mortgage; the mortgagee must pay his own attorney for setting up his claim in this proceeding; the administrator in no way represents the mortgagee as such.

It is said in the case of Stone v. Strong, 42 Ohio St. 53, on page 55 that:

“The administrator is the trustee * * * for the unsecured creditors. ’ ’

But he is not the trustee for the secured creditors except as they are also general creditors. If the mortgagee in this case had failed to file an answer in the land sale proceedings, his lien would have been cut off by the decree of the court, and it would not have been the duty of the administrator to see that his lien was preserved.

That the cost and charges and expenses “of the sale” did not include the general costs of administration we think is evident from the fact that the administrator could have brought his action for the sale of the decedent’s land either in the court of common pleas or the probate court. See Lan. R. L. 9677 (R. S. 6137). Suppose he had brought his proceeding in the court of common pleas, surely the costs of the sale would have been confined to those incurred in the court of eommon pleas, and would have included no costs in the probate court.

The case of Andrews v. Johns, 59 Ohio St. 65 [51 N. E. Rep. 880] involved the fees of an assignee for the benefit of creditors, but it is evident from the opinion of the court that it regards a sale by an assignee for the benefit of creditors as bearing a very close resemblance to a sale by an administrator to pay the debts of the decedent. On page 79 the court speaks of costs in this way:

“The court having found that the land was bid off by the owner of the first lien for a sum less than his debt, taxes and costs, an order that the purchaser pay such taxes as were due, and such costs as might properly be required of him under the statute, which would be such costs, and such only, as were made necessary by the foreclosure, and upon such payment a deed be made by the assignee, would have met the situation as it existed and worked out the proper legal result.”

Here the costs are spoken of as those which would be made necessary by the foreclosure, not such costs as would be made necessary by the general administration of the estate, whether by an assignee or an administrator.

Of course in some cases (and apparently it is so in the case at bar), this works a hardship on the administrator and also on the "judge of the court as to his fees, but in this same case of Andrews v. Johns, 59 Ohio St. 65, 77 [51 N. E. Rep. 880] the court says:

“Upon the proposition that by the construction of the sections affecting assignments here made, an injustice results to the assignee in that he is denied compensation for labor which he is required to perform, it would seem sufficient to say, as suggested by counsel, that the hardship is not greater than in the case of a second mortgagee who forecloses his mortgage only to see the first mortgagee take all the proceeds, leaving his expenses to be borne without any result; or the case of an administrator, as in Stone v. Strong, where the first mortgagee is the purchaser. Besides, the assignee is not compelled to perform the services. He accepts the trust voluntarily and with whatever risk may attend its performance. If he finds it burdensome, or unremunerative, he may at any time resign.”

We also call attention to the case of Stone v. Strong, 42 Ohio St. 53, especially to the language found on page 56, as follows:

“We must not be understood as holding that such a proceeding can be prosecuted by the personal representative, for the mere purpose of earning commissions, when the probability is that the land will not pay the liens.”

In the case at bar it appears that the real estate was the only property of the decedent. It was appraised at $700. The equity of redemption in this real estate constituted the only asset of the estate for administration. The claim of the mortgagee was $500 and interest at 7 per cent from March 10, 1902. Here we have then a prior lien of $500, exclusive of interest due the mortgagee and exclusive of court costs and administrator’s fees incident to the sale. Under these circumstances this administrator, “the personal representative,” in thus bringing this property to sale took the risk of its bringing a price that would leave a fund from which might be paid his attorney’s fees and the fees of himself and the court incident to general administration of the estate. Such expenses cannot be paid from the proceeds to the prejudice of the- mortgagee. On page 57 of Stone v. Strong, supra, we find another comparison between a land sale by an administrator and a foreclosure by a mortgagee, the court saying:

“The same result would follow if the mortgagee had been foreclosing his own mortgage; the costs and expenses of making the sale must first be paid, including poundage, if he is not the purchaser, although the residue is insufficient to pay his lien. ’ ’

In the foreclosure case the mortgagee is not entitled to his attorneys fees, and it seems by analogy that in the land sale proceeding the administrator should not be allowed his attorney’s fees, as part of the costs, .prior to the claim of the mortgagee.

Laning R. L. 9730 (R. S. 6188) authorizes compensation for “extraordinary” services, but there were none such in this case. There were no contests between lienholders, nor any contest of any kind. The case was as simple and ordinary as a proceeding to sell real estate to pay debts could be.

It has been suggested in argument that to make perfect title to his real esate in the purchaser -thereof under the mortgage it is necessary to have the administrator in court as a party to the end that it may be divested of the lien of other debts of the deceased.

It is our understanding that in an action to foreclose the mortgage the administrator would not have been a necessary party (though if the equity of redemption had any value he might have been a proper party), and that the purchaser is subrogated to the rights of the mortgagee and that where the value of the property proves to be less than the amount due on the mortgage, and there is no fraud or collusion in the proceeding and sale, such title is unassailable by general creditors of the decedent, or the representatives of his estate. Here the administrator did not owe any duty to the general creditors, to the mortgagee, to tbe purchaser, or to anyone else, justifying him in bringing this property to sale and adding to tbe costs and expense of tbe sale, other costs and expense not incident thereto. See McMahan v. Davis, 10 Circ. Dec. 467 (19 R. 242).

We hold that nnder the circumstances here appearing the item of $15.40, conrt costs for administration, and $60, attorney’s fees, and surety company’s bond of administrator do not come within the purview of Sec. 6165 Rev. Stat. as “costs and expenses of the sale.” And that they cannot he paid from the proceeds, of the sale to the prejudice of the mortgagee.

Therefore the judgment of the court of common pleas will he modified accordingly.

Hull and Haynes, JJ., concur.


text:
    STREET RAILROADS — STREETS—ORDINANCES.
    [Cuyahoga (8th) Circuit Court,
    November 28, 1904.]
    Hale, Marvin and Winch, JJ.
    John F. Belle v. Glenville (City) et al.
    1. Property Rights oe Street Railroad not Taken away by Annexation oe New Territory to Municipality.
    The property rights of a street railroad operating under authority of a municipality to the extent that its lines are within the corporate limits, and under authority of the county commissioners to the extent that its lines are without the corporate limits, are not taken away by the mere annexation of the unincorporated territory to the municipality.
    2. Extension oe Track oe Street Railroad need not be Built as New Line, when.
    Where a street railroad was built through unincorporated territory under authority granted by the county commissioners, and such territory is thereafter annexed to a municipality, an extension of the line so built is not required to he made under the statutes regulating the construction of new lines of road; the company operating such road is within the meaning of Lan. R. L. 3770 (R. S. 2505; B. 1536-188), and an extension of its line may be made under favor of said statute.
    3. Extension oe Street Railroad may Include Cross Tracks.
    The “extension” of a street railroad is not necessarily confined to a continuation of the line of road in the same general direction as the original track, but may include the construction of a track across and at right angles with the original track.
    4. Objections to Use oe Electricity eor Motive Power not Well Taken, when.
    Where a street railroad line has been operated for more than ten years by motive power other than that furnished by horses and mules, an objection to the operation of an extension of such line by electricity, based, upon the ground that the original line was to he operated by motive power furnished by horses and mules, is not well taken.

      5. Ordinance Referring to Incidental Matters does not Contain more than one Subject.
    An ordinance is not open to the objection that it contains more than one subject, within the inhibition of Lan. R. L. 3X06 (R. S. 1694; B. 1536-620), because it refers to matters which are simply incidental to the real subject.
    6. Approval op Part op Repealed Ordinance mere Surplusage, when.
    The clause, “in all other respects said ordinance is approved and confirmed,’ contained in an ordinance which repeals a part of a prior ordinance, does not make the repealing ordinance obnoxious, to Lan. R. L. 3106 (R. S. 1694; B. 1536-620) in that it is, in effect, the re-enactment of a part of a former ordinance, and therefore contains more than one subject; such clause is mere surplusage, and adds nothing to the former ordinance.
    7. Lan. R. L. 3765 (B. 1536-189) not Applicable to Extension op Existing Street Railroad.
    Laning R. L. 3765 (B. 1536-189) has no application to the extension of the track of an existing line of road, such as is provided for in Lan. R L. 3770 (R. S. 2505; B. 1536-188).
    8. Extension op Street Railroad Franchise need not be on Date Original Expires.
    The date of the renewal of a grant to a street railroad company need not be on the exact day on which the original term expired. Laning R. L. 3767, 3764, (R. S. 2501, 2502; B. 1536-184, 1536-185) examined.
    Appeal by plaintiff.
    Arnold Green, for plaintiff:
    The provisions of Lan. R. L. 3106 (R. S. 1694) are mandatory and not directory. Bloom v. Xenia (City), 32 Ohio St. 461; Campbell v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606] ; Elyria Gas & W. Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335],
    As a condition precedent to the power of the council' of a municipal corporation, to authorize the extension of a street railway therein, there must be produced to the council the written consents of a majority of the property owners measured by the feet front abutting on the street, along which it is proposed to be constructed. Roberts v. Easton, 19 Ohio St. 78.'
    A street railway constructed and operated in'' a street without legal authority therefor, is a public nuisance. Booth, Street Railways Sec. 3.
    A municipality’s power to regulate and control the construction and operation of street railways therein is only obtained by statutes expressly conferring the power and then only under the limitations and .conditions attached thereto. Raynolds v. Cleveland, 24 O. C. C. 215.
    C. M. White, C. A. Neff and Squires, Sanders & Dempsey, for defendant.
   MARVIN, J.

Suit is brought by the plaintiff to enjoin the city of Glenville and its officers and the Cleveland Electric Railway Company, which is a street railroad corporation, from taking any steps toward the construction or operation of a street railroad in Doan street in said city.

Plaintiff is a taxpayer of said city and owns real estate therein, having a frontage on that part of said Doan street along which he alleges said railroad company is about to construct and operate a street railroad, and which it will construct and operate unless enjoined by the court.

Plaintiff, before bringing this suit, requested the solicitor of said city to bring the same, which he refused to do.

The railroad company claim the right to construct and operate such railroad as an extension of its St. Clair street railroad line, so-called, now operated by it in said city, by virtue of an ordinance passed by the council of said city on June 29, 1903. Said ordinance provides, among other things, as follows:

“An ordinance authorizing the Cleveland City Railway Company to extend the present system of double-track electric street railway now in operation upon St. Clair street, in the city of Glenville, from St. Clair street, southerly, to the southerly limits of the city of Glenville, and from St. Clair street, northerly, to the right of way of the Lake Shore & Michigan Southern Railway Company.
“Whereas, heretofore, on June 16, 1902, the council of the village of Glenville passed an ordinance, entitled ‘An ordinance authorizing the Cleveland City Railway Company to extend its present system of double track electric street railway on St. Clair street, from the present terminus of its tracks to the easterly limits of the village of Glenville, and on Doan street from its tracks on St. Clair street south to the southerly limits of the village of Glenville, and to extend the present franchise of said company;’ and,
“Whereas, said ordinance was duly accepted by the Cleveland City Railway Company, and it has begun the construction of its tracks and their appliances in pursuance of the terms of said ordinance; and,
“Whereas, litigation has been instituted by one of the property owners upon Doan street, attacking the validity of said ordinance, so far as it grants the right to an extension to said railway company on Doan street, which litigation is still pending, and by reason of which the construction of the line upon Doan street is being delayed; and,
“Whereas, the Cleveland City Railway Company has filed with the clerk of the city the written consents of more than one-half of the property owners upon that portion of Doan street, between the southerly line of the Lake Shore & Michigan Southern Railway Company’s right, of way and the southerly limits of the city of Glenville, to the construction and operation of such street railroad thereon; and,
“Whereas, the city council of the city of Glenville hereby finds and determines that more than one-half of the property owners upon' that portion of Doan street upon which an extension is authorized by this ordinance have given their written consent to the construction and operation of a street railroad thereon; now, therefore,
“Be it ordained by the council of the city of Glenville, three-fourths of all members of said council concurring:
‘ ‘ Section 1. That the Cleveland City Railway Company, upon the terms, conditions and agreements hereinafter contained and not otherwise, be, and the same is, authorized to extend, construct, maintain, and operate by electricity, its line of double track street railway in the city of Glenville, with the necessary poles, wires, switches and appurtenances, upon Doan street,* from St. Clair street southerly to the southerly limits of the city of Glenville, and from St. Clair street northerly to the right of way of the Lake Shore & Michigan Southern Railway Company; said extension in Doan street to be constructed and operated as one entire extension of the present line of said company in said city, and as a. cross-town line.
“Section 13. The right herein granted shall be and remain in force until June 18, 1927.”

The Cleveland Electric Railway Company is the successor of the Cleveland City Railway Company, named in said ordinance, and is entitled to whatever rights under said ordinance said Cleveland City Railway Company would have been entitled to but for the assignment of its rights to said Cleveland Electric Railway Company.

It is urged, however, by the plaintiff that no rights were acquired by any party to construct and operate such railroad under said ordinance.

The grounds upon which this claim is based are that the line of railroad operated on St. Clair street at and prior to the time of the passage of said ordinance was being so operated without any lawful authority, because the same was constructed as an extension into the city, then village of Glenville, of a line of railroad then owned and operated by a predecessor of the Cleveland City Railway Company.

The village of Glenville immediately adjoins the city of Cleveland on the east. The first line of road constructed as a part of the St. Clair street line was so done by authority of an ordinance passed by the city of Cleveland many years ago, and the line so built extended easterly along said street to Wilson avenue, which was then the east line of the •city of Cleveland.

Under a franchise granted by the commissioners of Cuyahoga county a line of road was built by the company owning the St. Clair street line, which was a continuation of said original St. Clair street road from said east line of the city to a point within the city of Glenville, and was thereafter known as part of said line.

When this line east of Wilson avenue was built the road over which the line ran was outside of any municipal corporation. Later, the territory, including this part of said road, was annexed to and became a part of the city of Cleveland and the road was thereafter a part of the St. Clair street line in said, last named city. The claim is made on the part of the plaintiff that such annexation had the effect to deprive the company of the right to operate said line between Wilson avenue and the west line of the then village of Glenville. This contention is not sound. If the law is as claimed, every time the territorial limits of a municipality are extended so as to take in unincorporated territory, every street railroad operating under authority of the municipality to the extent that its lines are within the municipality, and under authority of the county commissioners, so far as its lines are without the municipality, would have its property rights taken away by simply an annexation of such unincorporated territory to the municipality. This is against reason, and would perpetrate such a wrong upon street railroad companies as cannot be tolerated by the law.

It has already been said that Glenville immediately adjoins the city of Cleveland on the east. This, of course, was not true at the time the line was built over the unincorporated territory east from Wilson avenue. So that we hold that after the annexation of the unincorporated territory already mentioned the railroad company lawfully owned and operated the St. Clair street line easterly from Wilson avenue.

On March 20, 1890, the' council of Glenville passed an ordinance in terms authorizing the street railroad company to extend its line from its then eastern terminus easterly along St. Clair street in Glenville to the Coit or Eddy road, a long way east of Doan street, and shortly thereafter the road was so extended and has ever since been operated as a part of the St. Clair street line of said railroad company throughout its entire length.

The railroad company claim the right to make the extension now sought to be made by virtue of Lan. R. L. 3770 (B. 1536-188; R. S. 2505), which reads:

“The council of any city or village may grant permission, by ordinance, to any corporation * * * owning, or having the right to construct, any street railroad, to extend their track, subject to the provisions of Secs. [Lan. 5520, 5521, 5523, 5526, 5527 and 5528] 3437, 3438, 3439, 3440, 3441, 3442 and 3443 on any street or streets where council may deem such extension beneficial to the public.”

Laning R. L. 3763 (B. 1536-183) provides that:

“No extension of any street railroad located wholly without any such city, or, of any street railroad wherever located, which has been or shall be built in pursuance of a right obtained from any source or authority other than a municipal corporation, shall be made within the limits of such city, except as a hew route, and subject to -the provision of See. [Lan. 3767] 2501 Rev. Stat. of Ohio and Sec. 30 [Lan. 3764; B. 1536-185; R. S. 2502] of this act.”

As has already been said, a part of the present St. Clair street line was built under authority granted by the county commissioners. It is urged that this being true, any extension of such line must be made under the provisions of the law regulating the construction of new lines of road because it is said there is a part here of the line sought to be extended, the authority to construct which was obtained from another source than a municipal corporation. As has already been said, this line on St. Clair street throughout its entire extent has been owned and operated by the predecessors of the Cleveland Electric Railway Company for more than twelve years, and its last extension was granted by ordinance of the council of Glenville in 1890. That extension is the one which was made over a line part of which was built under authority other than that of a municipal corporation, but for the whole time since 1890 this extended line has been operated without interference on the part of the plaintiff or the village of Glenville.

The authority provided in Lan. R. L. 3770 (B. 1536-188; R. S. 2505) is to any corporation or individual ‘ ‘ owning or having the right to construct any street railroad.” We think the'street railroad company here comes within the terms of this statute and that the city of Glenville cannot now be heard to complain that the extension made in 1890 was invalid for the reason suggested; and if the city of Glenville cannot be heard, then this plaintiff cannot be heard to make such complaint.

Doan street runs north and south and crosses St. Clair street nearly at right angles at a point east of the west line of Glenville about one-third of the distance between the east and west lines thereof and south of the Lake Shore & Michigan Southern track about one-third of the distance to the south line of Glenville.

It is not claimed on the part of the railway company that it pursued the statutory method necessary to construct and operate an original street railroad, but only that it did those things necessary for the extension of the tracks of an already existing road.

It is said, however, that the construction of a road across and at right angles with an already existing road cannot in any proper sense be called an extension of the track of the original road, and it is said' that this is emphasized by the language of the ordinance providing:

“Said extension in Doan street is to be constructed and operated as one entire extension of the present line of said company in said, city and as a cross-town line.”

We do not understand that the language of the ordinance as to a cross-town line in any manner affects the question of whether the Doan street track can be considered as an extension of the St. Clair street track. To extend the track of a street railroad is not necessarily to continue such • track in the same general direction as the original track. It would seem that there could be no doubt that if there was a point somewhere to the north of St. Clair street which, it was important to the railroad company and to the public, should be reached by the tracks of such road, the laying of track connections with the St. Clair street track to such point would properly be an extension of the track already laid; and perhaps, if the point to be reached had been so far east from Doan street as that the new track being connected with the St. Clair street track at Doan street would diverge at a very slight angle from the line of St. Clair street going east, it would be admitted that this might properly be called an extension of the St. Clair street track, and surely the degree of the angle made in passing from the St. Clair street track onto the track laid as an extension can in no wise affect the question. of whether such new track is an extension of the old.

If this is true as to the north side of St. Clair street, it must be equally true as to the south side of St. Clair street, and a line of track running either northerly or southerly from the St. Clair street track might with propriety be designated as an extension of the St. Clair street track. If this be so, then a track running either way from St. Clair street along Doan street might be made as an extension of the St. Clair street track, and surely one extension having been made could be no bar to the making of the extension in the other direction, and it would be absurd to say that you might accomplish what was in terms authorized by this ordinance by making two extensions when it could not be done by making all as one extension. This is so held in the ease of Aydelott v. Cincinnati, 4 Circ. Dec. 486 (11 R. 11), the fourth clause of the syllabus reading:

“The fact that at a certain point a street Railroad route ‘forks’ and becomes two diverging branches, does not destroy the unity of the route, or make it two diverse and different routes. ’ ’

In the case of Cincinnati v. Railway, 1 Dec. 591 (31 Bull. 308), the superior court of Cincinnati held:

“To constitute a valid extension within the meaning of the street railway legislation of this state, it is not necessary that the extension should begin at one of the termini or run in the general direction of the original route.”

See also South Boston Ry. v. Railway, 121 Mass. 485.

We hold, therefore, that the proposed line of track along Doan street is properly an extension of the St. Clair street track.

It is- urged, however, that the company’s right to operate on St. Clair street, if it had any, was to operate as an extension of a line the motive power of the cars of which should'be horses or mules and that, therefore, no extension of the track could be authorized with electricity as a motive power. The answer to this is, that at the time application, was made for this extension, the railroad company owned and was: operating a road along St. Clair street with electricity as a motive power, and that for more than ten years before the filing of the application for this extension the cars had been operated over this line with something other than horses and mules as the motive power.

It is urged further on the part of the plaintiff that the ordinance of June 29, 1903, is in violation of Lan. R. L. 3106 (B. 1536-620; R. S. 1694), which provides:

“No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title, and no by-law or ordinance, or section thereof, shall be revived or amended, unless the new by-law or ordinance contain the entire by-law or ordinance, or section revived or amended; and the by-law or ordinance, section or sections so amended shall be repealed.”
“First, it is said that the ordinance legislates as to several subjects, to wit, the construction of a railway, the repeal of portions of certain other ordinances, the revival or reaffirmance of portions of another ordinance, and the amendment of another ordinance.

We understand the entire subject-matter of the ordinance under consideration was the construction and operation of an extension of the track of the St. Clair street railroad line along Doan street, and that the other matters spoken of are simply incidents of that one subject-matter. This subject-matter is clearly expressed in the title of the ordinance, and therefore this position of the plaintiff is untenable. So far as the-ordinance undertakes to repeal any prior ordinance, it is found in Sec. 10, which reads.

‘! Section 10. Said railway company by accepting the terms of this ordinance shall be deemed to'have waived all right to construct said Doan street line under the franchise granted and undertaken to be granted by the ordinance passed by the council of the village of Glenville, June 18, 1902; and so much of said ordinance as is in conflict with the provisions of this ordinance or relates in any manner to the granting of such right on Doan street is hereby repealed; in all other respects said ordinance is approved and confirmed. ’ ’

So far as anything is done by way of repeal, the language is that •ordinarily used in legislative enactments by the general assembly, and we think no mandatory provision of the section referred to is violated by the language repealing a previous ordinance.

As to the language which it is said is obnoxious to the statute because it re-enacts some part of a former ordinance, it is enough to say that the language used, viz., “in all other respects said ordinance is approved and confirmed,” added nothing to such former ordinance and was not a re-enactment thereof but was simply surplusage, as such parts of the former ordinance as were not repealed would without this language have remained in force.

Objection is further made to the ordinance under consideration that it extends the franchise upon St. Clair street. The franchise which the railroad company held on St. Clair street would have expired but for this extension. The ordinance under consideration, as will be seen by Sec. 13 already quoted, grants the rights provided for in the ordinance to remain in force until June 18, 1927. We do not understand that this would at all render the ordinance invalid.

Laning R. L. 3764 (B. 1536-185) provides:

“That no grant nor renewal of any grant for the constructing or operation of any street railroad, shall be valid for a greater period than twenty-five years from the date of such grant or renewal. ’ ’
“And as this simply provides that this extension may continue for a period of less than twenty-five years from the date of the ordinance, we think no just criticism can be made upon it in that regard.

This court, in the case of State v. Railway, 3 Circ. Dec. 471 (6 R. 318), held that:

“Whenever, in the opinion of the city council the public welfare would be promoted thereby, it may, by agreement with a street railway company, terminate a grant previous to its expiration, and renew the franchise for any period not in excess of the limitation fixed by statute.”

Laning R. L. 3767 (B. 1536-184; R. S. 2501) provides for the renewal of grants already made, the language being, “the council may renew any such grant at its expiration upon such conditions as may be considered conducive to the public interest. ” ’

If this last mentioned section applies at all to the matter under consideration, we do not suppose that it was intended by the legislature that the date of the grant of every renewal must be at the exact day on which the original term expired. This would be impracticable, as is shown by Judge Upson in his opinion in the case already cited, State v. Railway, supra.

It is further urged that the provisions of Lan. R. L. 3765 (B. 1536-189), were not complied with in making this extension. Special attentions called to this language of the section:

“Provided, further, that no resolution or ordinance, providing for such extension or change of route or routes, or changes or revision of systems .of transfers, shall be passed- until public notice of the pendency of such resolution or ordinance shall have been given in one or' more of the daily newspapers.”

No claim is made on the part of the railway company that this was complied with, for the reason, as it is urged, that it has no application to the extension of the track of an existing line of road such as is provided for in Lan. R. L. 3770 (B. 1536-188; R. S. 2505). An examination of these two sections, Lan. R. L. 3770 (B. 1536-188; R. S. 2505) and Lan. R. L. 3765 (B. 1536-189), makes it plain that the subject-matter of each, is different from the subject-matter of the other, and therefore the provisions as to the extension of routes are not applicable to the extension of the track of a road already laid.

Other objections were made on the hearing to the proceedings of the council and the railway company, but an examination of the whole ease leads us to the conclusion that the petition of the plaintiff should be dismissed, and it is so ordered.

Hale and Winch, JJ., concur.


author: JELKE, J.

text:
    INFANTS — NEGLIGENCE—TRIAL.
    [Hamilton (1st) Circuit Court,
    February, 1905.]
    Jelke, Swing and Giffen, JJ.
    Cincinnati Traction Co. v. Robert E. Blackson, etc.
    1. How Jury to Determine whether Infant was Guilty of Contributory Negligence.
    In determining whether or not an infant was guilty of contributory negligence, it is tbe duty of tbe jury to first determine tbe standard of conduct to which a child is held, by giving due consideration to its age, mental and physical development and environment; and, after having fixed the standard, to measure that which the child has actually done by such standard, and determine whether the child has come up to it or failed.
    2. No Legal Presumption that Infant is Incapable of being Charged with Contributory Negligence.
    There is no legal presumption that an infant eleven years of age is incapable of being charged with contributory negligence; the determination of such question is entirely for the jury, under proper instructions from the court. Hence, a charge to the jury, that, “in the absence of evidence of such greater intelligence and capacity than is common to boys of his age, the law presumed that he is incapable of being charged with contributory negligence,” is erroneous.
    Error to Hamilton common pleas court.
    Miller Outcalt, for plaintiff.
    C. S. Sparks, for defendant.
   JELKE, J.

This was an action brought by Robert E. Blaekson, an infant, by his next friend Millie Blaekson, against the Cincinnati Traction Company, for personal injury alleged to have been received by the said Robert E. Blaekson by being run down by the car of defendant below, through the negligence of said defendant’s servants, at the corner of Fifth and Plum streets, in this city.

Among other defenses was that of contributory negligence. Upon this subject, the court charged the jury:

“If, however, you find that this particular boy was more intelligent or had greater capacity to avoid danger than is common to boys of his age, then he should be charged with such intelligence and capacity. In the absence of evidence of such greater intelligence and capacity than is common to boys of his age, the law presumes that he is incapable of being charged with contributory negligence; but it is for the jury to say, from all the circumstances of the case, whether he is capable of exercising reasonable care and vigilance to see and avoid danger. If lie is capable of so doing, be is chargeable with the exercise of reasonable care. If not, he cannot be charged with contributory negligence. ’ ’

-The Cincinnati Traction Company, plaintiff in error, complains that this charge constitutes prejudicial error:

“The degree of care and caution required of a child must be measured by his age and capacity. But while the law makes due allowance for the thoughtlessness and indiscretion of youth, it does not hold children necessarily irresponsible. To the extent that a child has knowledge and understanding of the danger to which he is exposed, or where it is of such a nature as to be necessarily obvious even to one of his years, he is under a legal duty to avoid it. The standard of his duty and responsibility is measured by such reasonable care and prudence as usually characterize children of his age, intelligence and experience, and to that extent only is he held responsible in law for acts contributing to his own injury. Much difficulty has been experienced in applying this rule; and, while in some cases courts have decided as a matter of law that an infant was clearly sui juris, and in others that he was not, in a far greater number of instances they have held that the capacity of the infant to understand and avoid danger was a question which should be submitted to the jury. Usually it is held that children under five years of age cannot be guilty of contributory negligence, and that children who have arrived at the age of twelve years may in law contribute to their own injuries. But within those limits courts have usually considered the question one of fact and not of law, unless the child was of more than ordinary intelligence or the situation was such that a child of. ordinary intelligence must necessarily realize his danger.” Booth, Street Ry. Law Sec. 385, page 523.

It is the duty of the jury in considering a case of this kind to first determine the standard of conduct to which a child is to be held, by giving due consideration to its age, mental and physical development and environment, and then having fixed this standard, to measure that which the child has actually done by this standard and determine whether or not the child has come up to it or failed.

We are of opinion that it was error for the trial court to say:

“In the absence of evidence of such greater intelligence and capacity than is common to boys of his age, the law presumed that he is incapable of being charged with contributory negligence.”

At the time of the accident, Bobert E. Blackson was about eleven years old. There is no presumption in the matter. It is a question to be left entirely to the jury under proper instructions, and we think that in this sentence the conrt committed error prejudicial to plaintiff in error.

Further, on the question of the responsibility of children and their capacity for. contributory negligence, the whole charge is somewhat confused, and might very well have misled the jury.

We are therefore of opinion that the .judgment herein should be reversed, and cause remanded for a new trial.

Swing and Giffen, JJ., concur.