text:
    CARRIERS — NEGLIGENCE.
    [Wood (6th) Circuit Court,
    January 12, 1906.]
    Parker, Haynes and Wildman, JJ.
    Lake Shore & M. S. Ry. v. James Gibson.
    1. CARRIER of Live Stock must Use Due Care although Stock Improperly Loaded.
    Where a railroad company receives a car of hogs from a shipper and undertakes to carry them in spite of the fact that they were overcrowded in loading, it is liable for the injuries sustained by the hogs, through its failure to use due care and reasonable means to protect them from overheating.
    2. Carrier cannot Limit its Liability for Negligence by its own Custom nor by Special Contract.
    It is proper to exclude testimony offered for the purpose of showing that a railroad company is not accustomed to sprinkle, or “drench,” hogs in transit during the night, or during the day unless ordered by the shipper, in an action by the shipper for injury sustained by these hogs through overheating. A carrier cannot limit its legal liability for negligence by its own customs nor by special contract.
    [Syllabus approved by the court.]
    ERROR to Wood common pleas court.
    E. D. Potter and J. 0. Troup, for plaintiff in error-.
    Edward Beverstock, for defendant in error.
   HAYNES, J.

(Orally.)

James Gibson brought, in the court of common pleas, an action against the Lake Shore & Michigan'Southern Railway Company to recover for the loss of certain hogs shipped from Luckéy, this county, to Buffalo, N. Y. The shipment took place on August 4, 1900, and it is claimed, on behalf'of the plaintiff, that the hogs died by reason of the railroad company failing to drench the hogs properly, as it is termed; that is to say, from time to time, during the day, to spray them with water to keep them cool, and the allegations in the petition are, that the defendant failed in that respect and it is, therefore,-liable for the loss of the hogs.

The defendant denies the allegation of the petition in that respect and sets up by way of defense that there was a special contract but upon the trial of the case the testimony was that the special contract had never been delivered or accepted by Gibson and. the court ruled it out so that is not before us.

The ease was tried upon the issue made in the pleadings in regard to the matter of spraying or drenching. The hogs it appears were loaded in tbe afternoon into a car at Luekey and were sent to Toledo •over the Ohio Central railroad, arriving there in the evening and were •picked up about 8 o’clock or such a matter by the Lake Shore railroad and taken to Buffalo where they arrived twelve or fourteen hours later.

It is claimed, and evidence is offered tending to show, that the Logs when they were placed in the ear by the plaintiff below, were -overcrowded; that is, the ears were overloaded when the hogs were put in, and that that was largely the cause of the deáth of the hogs — the hogs becoming overheated and scrambling, pushing and crowding each other in the car in their efforts to get air and rest.

And it is urged that that is a matter of contributory negligence for which the plaintiff below should be responsible, and should exonerate the company. Perhaps it- is well enough at this point to cite a case decided by the Supreme Court of Ohio, the case of Union Express Co. v. Graham, 26 Ohio St. 595. There, there had been a shipment from Cleveland to Ravenna, of a certain article of furniture that had been done up, not in a very careful manner, — in fact done up in wrapping paper when it should have been boxed, — and the court found it could still have been carried by the express company if they had used extraordinary care and diligence. Judge White on page 598 said:

“It is settled by, a series of decisions in this state, that a common carrier cannot, by stipulation with his employer, exempt himself from liability for loss or damage occasioned by his own negligence or that of Ms servants.”

That general rule does not apply here because there was no special contract as alleged, for it is ruled out. In the case cited, when the article of furniture came to the express office it was found it was not properly packed and the express company refused to receive it except at “owner’s risk,” and it is claimed that was agreed to. The court in the opinion say:

‘ ‘ The present case is sought to be withdrawn from -the operation of these rules by the fact that the property in question was not properly packed when delivered to the carrier; and it is claimed that, under the circumstances, the carrier is to be regarded as a mere bailee for hire.
“We do not assent to this view.
“The plaintiff in error, while engaged in the business of a common carrier, could not by agreement, divest itself of that character.
“The only effect of the agreement was to relieve it from thé liabilities imposed by the common law on public carriers where there was no fault nor neglect on the part of the carrier.
“The carrier may well refuse to receive the property, unless it is properly packed. But if he receives it the duty attaches of exercising due care for its safe carriage. If, notwithstanding such care, the property should be damaged through the defective packing of the owner, the carrier would be relieved from liability. But where, as in this ease, the carrier takes charge of the property for the purpose of carriage, the duty rests on him to show that the injury is attributable to the defective-packing, and not to any fault or neglect on his part. This the plaintiff in error failed to show.”

There is no special agreement in this case. The bill of lading is here and it is a general bill of lading. In the trial of the case, testimony was offered on the part of the plaintiff as to the condition of the hogs, and the ■ condition of the weather, and especially the condition of the hogs late in the day. that they were taken. The testimony shows at the time the hogs were taken, two of them appeared to be affected by the heat. Nevertheless, the railroad received these hogs and forwarded them. There is testimony tending to show that the railroad company has made provision for the drenching or spraying of stock at different points along the line of the road, by means of a .hose attached to water-pipes at places where they take water, that the water is turned into the cars and thus drenches the hogs. The plaintiff proceeded to show this, fact, and further showed that it was the custom of the railroad pom-pany to sprinkle the stock; that they were sprinkled at different points, along the railroad. The railroad company, when it came to its side of the ease, offered testimony tending to show that the hogs were over-packed or overcrowded in the loading, that is, that certain hogs were put in a car with a number of sheep, and this packed the hogs too closely" together and subjected them to injury by heat. There is testimony on the part of the plaintiff in rebuttal, tending to show that they were not improperly packed. The defendant desired to show that it was the custom and practice of the railroad company not to sprinkle hogs during the night season, and also testimony regarding their habit during-the day, not to sprinkle them unless it was ordered by the shipper, and some of that testimony was refused by the court.

Some testimony was allowed to be given however in regard to the effect of sprinkling sheep, and in regard to the effect of sprinkling when hogs were packed in with sheep — it being claimed it was dangerous to sheep to sprinkle them with water, when on the road, because they would catch cold and become less marketable.

These are called customs, and to the extent that they are in the course of business, the testimony offered by the plaintiff, we think, was admissible, but we are unable to see that the court erred in refusing the testimony of the defendant. The effect of the testimony would be to limit the liability of the railroad company by its own customs. It could not do that. The law casts upon the railroad company the burden of common carriers and says what it shall do, and it cannot limit it by any customs they may undertake to establish themselves. They cannot do it even by special contract if it is caused by negligence.

We understand the rule of the Supreme Court is, that when they received these hogs they were bound to use due care in the transportation of those hogs in protecting them from injury, although they were ■overpacked in the cars. Testimony was offered tending to show by some witnesses that they were overpacked, and that that packing resulted in the death of some of these hogs.

Testimony was offered tending to show that the air moving through the cars, when they were in motion, would be sufficient to cool the hogs. All of that testimony the court admitted, and, so far as we can observe, the court only excluded the class of testimony which would tend to show a custom that would absolve the railroad company from liability, and which, as I have stated, they are not permitted to do.

We think that the court made a fair statement of the case and a fair charge to the jury, of the law of the ease.

We think that there was not sufficient care on the part of the agents of the railroad company during the day in regard to the sprinkling of these hogs; we think it might have been done with a little care, without injury to the sheep.

We are, therefore, disposed to allow the verdict of the jury to stand in the court of common pleas and the judgment will be affirmed without penalty.

Parker and Wildman, JJ., concur.


source: Caselaw Access Project

author: JELKE, J.

license: Public Domain

text:
    PARENT AND CHILD.
    [Hamilton (1st) Circuit Court,
    January 6, 1906.]
    Jelke, Swing and Giffen, JJ.
    William Wallace Peters v. Catherine Scoble, Guard.
    Allowance to Mother por Support op Her Step-Son.
    The rule which permits a widowed mother without means or income other than that resulting from her own labor, to charge the estate of her child' for support and education, is applicable to one who by her own exertions has supported a step-son until he was sixteen years of age.
    [Syllabus approved by the court.]

      Besor to Hamilton common pleas court.
    Johnson & Levy, for plaintiff in error.'
    Dempsey, Mallon & Vordenberg, for defendant in error.
   JELKE, J.

This ease comes into this court upon error from the court of common pleas. William Wallace Peters was the son of William Wallace Peters, who was married to Catherine Scobel June 22, 1882, when the boy was four years old. In December, 1882, the boy’s father died,, leaving a policy of insurance for $3,000. Gabriel Dirr was appointed guardian for the boy’s estate, and received the proceeds of this insurance. In June, 1883, Gabriel Dirr resigned, and Catherine Scobel,, mother of the step-mother of the boy, was appointed guardian of his person and estate, and there was turned over to her the sum/of $2,141.73.. From the time of her marriage to the boy’s father, the step-mother took charge of said minor and raised, supported, and educated him until he was sixteen years old, when he ran away. It seems that during this period, Catherine Peters and her mother Catherine Scobel, worked for their own and the boy’s living, by keeping a boarding house. The said sum of $2,141.73, together with other money borrowed from a building association, was invested in a house, which they used as their home, and for the carrying on of the business of keeping boarders. Hard times coming on, and with the depreciation of real estate, the building association mortgage swept this house away, with the minor’s estate which was invested in it.

In December, 1904, the guardian, by proceedings in the probate court, was compelled to file an account, which she did by charging the boy’s support, maintenance and education against the sum received by her, thereby more than exhausting the same.

It is contended on behalf of plaintiff in error that inasmuch as the step-mother has always stood in loco parentis, no charge can be made for the boy’s maintenance, support and education. We have had occasion recently in a somewhat similar ease, to consider the law applicable to cases of this land. See the case of Spink v. Spink, 28 O. C. C. 94.

We are also guided in our conclusion largely by the law laid down in Schouler, Dom. Rel. (Ed. 1889), Secs. 238, 239.

It is clear that courts of chancery in matters of this kind, always show special favor to the widowed mother, and if the child has property, and the mother has no estate nor income other than that provided by her own labor and exertions, willingly permit her to charge the maintenance and support of the minor child against its estate. “Each ease must depend on its own facts.”

We are of opinion that the facts of this case justify the charge made by the guardian in her account, and the court of probate did right in allowing the same, and the court of common pleas in recasting said account and allowing these claims was also right.

The judgment of the court of common pleas will therefore be affirmed.

Swing and Giffen, JJ., concur.


author: GIFFEN, J.

text:
    CARRIERS — CONTRACTS.
    [Hamilton (1st) Circuit Court,
    June 2, 1906.]
    Jelke and Giffen, JJ.
    (Judge Swing not sitting.)
    Cincinnati & C. Trac. Co. v. Norfolk & W. Ry.
    Demurrage — Purchase* from Consignor bt Assignment of Bills of* Lading Assumes all Liabilities under Contract of Lading — Denial of Promise to Pat Mere Conclusion.
    In. an action by a carrier to recover demurrage, tbe averment in the answer that defendant purchased the freight after arrival by obtaining the bills of lading properly indorsed, the freight having been shipped to the order of the consignor, is no defense. The assignment of the bill of lading and the acceptance of the freight thereunder constituted an adoption by the defendant of the liabilities as well as the rights under the contract of shipment. A denial of a promise to pay under such circumstances is a denial of an express promise only. As a denial of an implied promise it is a mere conclusion.
    [Syllabus approved by the court.]
    C. B. Matthews, for plaintiff.
    Hollister & Hollister, for defendant:
   GIFFEN, J.

This action was commenced to recover .certain charges for delay in, unloading seventeen cars of steel rails after forty-eight hours’ notice of their arrival.

Plaintiff railway company avers in its petition that the defendant traction company ordered the rails to be shipped to it at Hillsboro, Ohio, by the Carnegie Steel Company; that by the terms of the bill of lading, the shipments made were deliverable to the order of the Carnegie Steel Company upon the surrender of the bill of lading properly indorsed; that each bill contained the provision: ‘ ‘ The delivering carrier may make a reasonable charge per day for the detention of any vessel or car and for nse of track after the car has been held forty-eight hours for unloading, and may add such charge to all other charges herennder and hold said property subject to a lien therefor;” that the plaintiff complied with its said contracts, and notified the defendant of the arrival of each car, and held the same for forty-eight hours - thereafter for unloading by the defendant; but that the defendant failed to unload each of said seventeen cars during the forty-eight hour period after receipt of notice of the arrival of each of said cars, and to return the same to the plaintiff; and each of said cars was detained by the defendant and the track of plaintiff was used for the storage of each of said cars, and for the time set forth it made a reasonable charge of one dollar per day for the detention of each car, amounting in all to the sum of $1,139, which the defendant agreed to pay.

The first defense of the answer is a general denial. The second defense denies that the defendant was the owner of the rails or that the same were delivered to, or accepted by, them during the period for which the charges were made. It avers that the rails were shipped by the Carnegie Steel Company to its own order and not to the defendant; that the Carnegie Steel Company was the owner and in possession of the rails, and this defendant had no possession nor control over the same. The defendant further avers that by a subsequent negotiation with the said Carnegie Steel Company, it became the owner of said rails, and said rails were delivered to the defendant, and freight therefor paid, but the defendant says that they were not received under the railroad receipt or bill of lading mentioned, but were received and accepted solely under said subsequent contract, and possession was delivered to them solely because the said rails were then in the possession of the plaintiff on its line in proximity to the line of this defendant, and this defendant never promised to pay said demurrage.

By way of cross petition, the defendant seeks to recover the sum of $422 paid as demurrage for the detention of certain car loads of steel rails which it avers were owned, in possession of, and under the control of the Carnegie Steel Company, and that it paid the charges demanded under protest.

The court sustained a demurrer to the second defense, and also a demurrer to the cross petition. The defendant, not desiring to plead further, withdrew its first defense, and thereupon the court dismissed its cross petition and rendered judgment for the plaintiff.

It is claimed the court erred in sustaining the demurrers for the reason that there was no contract, expressed or implied, whereby the defendant company became liable to pay charges for delay in unloading the cars not occasioned by itself.

The bills of lading expressly provide for a reasonable charge for the detention of any car after the same has been held for forty-eight hours for unloading, and while it does not provide that the same shall be paid by the consignee or its assignee, yet by delivering the bills of lading indorsed to it and accepting the rails, it impliedly agreed to pay ■all charges specified in the bills of lading. The company, by delivering the freight, may have surrendered its right to a lien just as it could surrender its right for freight charges, but did not surrender its right to collect the same.

The averment that the rails were not received under the bill of lading, but were received solely under the contract with the Carnegie Steel Company, cannot be true, in view of the allegations of the petition under which the bills of lading properly indorsed must have been surrendered to the railway company; and besides, if received and accepted solely under the contract with the Carnegie Steel Company, the defendant acquired only such rights as that company had without in any way affecting the rights of the plaintiff. The reason given for the delivery of the rails to the defendant is without merit, as the payment of the freight or the right to collect the same is a more substantial reason than the mere convenience of unloading seventeen cars of rails without regard “to their true ownérship. The averment that the defendant never promised to pay must be construed to be a denial of any express promise to pay, and so far as it is a denial of an implied promise, must be treated as a mere conclusion.

We are of opinion therefore that the second defense is not good and that the demurrer to the same was properly sustained. Substantially the same question is involved in the demurrer to the cross petition, which was also properly sustained.

Judgment affirmed.

Jelke,' J., concurs.


author: SWING, J.

text:
    INJUNCTION — PARTY WALLS.
    [Hamilton (1st) Circuit Court,
    February 3, 1906.]
    Jelke, Swing and Giffen, JJ.
    Adolph W. Rauch v. Bruckman Brewing Co.
    1. Mandatory Injunction not Allowed to Compel Specific Structure.
    A mandatory injunction will not issue to compel tbe erection of a structure of a specific character.
    2. Plaintiff Consenting to Location and Erection of Wall may not Enjoin the Use of a Particular, Wall.
    In an action to enjoin the erection of a wall on plaintiff’s property, where the plaintiff has consented to the location and erection of the wall, the character of the structure and the manner of its erection are not proper subjects for an injunction. Equitable grounds failing, equity will not award damages.
    . [Syllabus approved by the court.]
    INJUNCTION.
    Keam & Keam, for plaintiff.
    L. W. Goss, for defendant.
   SWING, J.

This is an action in equity seeking to enjoin the maintenance of a wall on plaintiff’s property and to compel .the defendant to erect a proper wall in the place of the present one.

The court could not grant the prayer of the petition to erect the wall asked for, for the reason that it is not the province of the court to issue mandatory injunctions of this character.

The court can, however, enjoin the defendant from maintaining the wall on the plaintiff’s premises; but the evidence discloses the fact that plaintiff consented to the building of the wall’ on his premises, and saw the wall while it was being erected and made no objection to its erection, and in fact now makes no objection to its location, provided the wall is made in a more substantial manner, and in a manner to better protect his own property. It follows from this that there is no equitable ground for an injunction, ai\d this being true, the petition must be dismissed, for if there is no existing equitable action, the court cannot proceed to award damages, which damages the petition alleges arose on the equitable action. The action could be brought for damages, either on contract or tort, and there is no claim of that kind here.

This action will be dismissed without prejudice to such an action..

Jelke and Giffen, JJ., concur.


author: PARKER, J. WILDMAN, J.,

text:
    EJECTMENT — FAIRS.
    [Lucas (6th.) Circuit Court,
    June 23, 1906.]
    Haynes, Parker and Wildman, JJ.
    Toledo Exposition Co. v. John W. Kerr et al. (Comrs.) and Lucas Co. Agrl. Soc.
    1. Agricultural Society does Not Lose Title to Lands fob Fair Purposes, Purchased with County Funds, by Leasing and Ceasing to Hold Fairs —Must be Legally Dissolved — Revised Statutes 3705 (Lan. 5959) Construed.
    Where an agricultural society has, with the money furnished by the county, acquired title to land, and, afterwards, makes a lease of the same for a long period of years to an exposition company on condition that the company continue to hold annual fairs and expositions on the property, the society itself ceasing to hold its regular fairs, for which it was organized, on the premises, the giving of this lease, the surrender of possession, and the ceasing to hold fairs will not warrant a court in adjudging the title and right of possession to have reverted to the county under Rev-Stat. 3705 (Lan. 5959) on the ground that the society has been “dissolved’" or has “ceased to exist,” where the society itself, as such, has not been, legally dissolved.
    2. Cross Petition — Defendant in Ejectment may not, by Cross Petition, Seek Ejectment against Codeeendant.
    Where a board of county commissioners seeks to assert title and right of possession as against an agricultural society and also against an exposition company, a lessee of the agricultural society, in an action of the; nature of ejectment, the defendant, the agricultural society, may not in the same suit, by cross petition, assert its right to possession of. the same premises as against its codefendant, the exposition -company, it® lessee. This constitutes an independent cause of action not adversary to the plaintiff, the board of county commissioners.
    Error to Lucas common pleas court.
    Kohn & Northup, for plaintiff in error-
    C. W. Everett, for defendant in error.
   PARKER, J.

The action in the court below is entitled, “John W. Kerr, L. 13-Bailey and Frank Wortsmith, as the Board of County Commissioners of Lucas County, Ohio, v. The Toledo Exposition Company and the Lucas County Agricultural Society.” It was brought to obtain relief touching: certain lands, and was, it seems to us, in the beginning, very clearly and: distinctly an action for the recovery of real property within the meaning: of Rev. Stat. 5781 (Lan. 9318). The case has presented to us some: puzzling questions, due largely to the changes made in the pleadings im the court in the progress of the case in the court below, and to some; changes in the opinions of the judges in the court below who had to- deal with the ease during its progress there. Judging from the journal entries, at timés it appeared to the trial judges that it was an action for the recovery of real property, and at other times, that it was an equitable proceeding of some sort or description. But, in order that we may solve the problems presented, it becomes necessary for us at the beginning to determine the character of the action, and we have concluded that it is, and has remained throughout, an action for the recovery of real property; and that appears to have been the final conclusion of the trial court when the ease was finally submitted and decided.

It is provided by Rev. Stat. 5781 (Lan. 9318), that,

“In an action for the recovery of real property, it shall be sufficient if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same,” etc.

In the original petition in this case it is stated: ‘ ‘ That the plaintiffs have a legal estate in the following described lands and tenements:” (Then follows the description.) “that the said plaintiffs are entitled to the possession of said premises, and that the said defendants unlawfully keep them out of the possession thereof.” And the prayer to the first cause of action is: “ The said plaintiffs therefore pray judgment against the said defendants for the recovery of the possession of said premises. ’ ’ Then follows a cause'of' action for rents and profits, and a prayer for a large amount which the plaintiff claims is due upon that account.

In the amended petition — and just why an amended petition was filed, we are not clear — it is not so distinctly stated that the plaintiff and the defendant, the Lucas County Agricultural Society, are in court in an adversary attitude. While it is stated that the plaintiff has a legal right in the land, it is also stated that the plaintiff is entitled to exclusive possession and that the exposition company unlawfully keeps the plaintiff out of possession of the premises.; but the plaintiff continues to assert that it is entitled to possession, and it has made the agricultural society a defendant, and the agricultural society has not demurred or sought to be excused from answering in the case on account of the absence of direct allegations of adverse possession against it, but has filed a pleading in which it claims that it is entitled to possession of the premises, and from which it appears that if the exposition company is in possession, it is in possession under the agricultural society; and, therefore, we think that upon the pleadings as they stood at the time the case was submitted and decided in the court below, it still remained an action for the recovery of real estate against both of the defendants named, and that they both had a right to be, and to remain in court, at least to defend. There is a great deal more set forth in the amended petition than I have stated — some allegations that would seem to call upon the court for some form of equitable relief — but we think these allegations did not change the character of the action.

The case of Raymond v. Railway, 57 Ohio St. 271 [48 N. E. Rep. 1093], affords a good illustration of the principle that matters of equity connected with an action to recover real estate do not change its essential character as an action at law. I shall only read the fourth clause of the syllabus:

“A petition against a railroad company by one out of possession of real .estate, which alleges title and right to possession of the land in plaintiff, and charges a wrongful entry and possession by defendant, and prays that the defendant may show his interest therein, that it may be adjudged null and void, and that judgment for the possession of the property may be awarded plaintiff, and -defendant enjoined from interfering therewith until compensation is made, states a case for the recovery of specific real property, notwithstanding the petition also contains allegations of threatened irreparable damage, as a ground for relief by perpetual injunction, and of a dispute as to boundary lines, as a ground for action by the court in settlement of such dispute, and of a dispute as to title, as a ground for asking that plaintiff’s title may be quieted. Such action,' being one in which either party may demand a jury, is not appealable.”

It is said by counsel for plaintiff in error that this amended petition does not contain a prayer appropriate to an action brought under Rev. Stat. 5781 (Lan. 9318). But we think the prayer is sufficient; - for, among other things, the prayer is, that “The Toledo Exposition Company”- — the company, I remark, which appears to be in the actual possession of the premises — “may be ordered to surrender the possession of said premises to this plaintiff, and that it be enjoined and barred from interfering with the possession or use of said premises,” etc.,— very much like the form of the prayer in the petition in the case to which I have just referred.

As a further statement of what this case is about, I shall read a part of the statement made by the court below in deciding the case, or in his opinion after the trial:

“Briefly speaking, this action is brought by the board of county commissioners of Lucas county against the Toledo Exposition Company and the Lucas County Agricultural Society, to recover the possession of certain real estate of which it claims to be the owner, and which it alleges is wrongfully held by the defendant company” — i. e., the exposition company.
“The (agricultural) society, has, however, filed a cross petition against its codefendant, in which it alleges the same facts and asks the same relief as are set forth and demanded in the amended petition.
“The defendant company” — and here the judge evidently refers to the exposition company — “denies the right of either plaintiff or «cross petitioner to the possession of the real estate in controversy. The -ultimate question of law to be determined is: To whom does this right belong ? '
“The plaintiff is authorized by Rev. Stat. 845 (Lan. 2104) ‘to ask, demand and. receive^ by suit, or otherwise, any real estate or interest therein, whether the same is legal or equitable, belonging to their county. ’
‘ ‘ Therefore, if the plaintiff has a legal estate in, and is entitled to, the possession of the real property in controversy, judgment must be rendered in its favor.
“It being admitted that all of this real estate was purchased with money raised by general taxation, and paid out of the county treasury of this county, it becomes important to examine the statutes by virtue of which the appropriation of public funds for this purpose was authorized.
“February 28, 1846, (44 O. L. 70) an act was adopted by the general assembly, entitled, ‘An act to encourage agriculture,’ which provided that when thirty or more persons associated together as an agricultural society, organized by the adoption of a constitution and the election of officers, and gave an exhibition as required thereby, the county in which they resided was empowered to aid the society by the annual payment of not more than $800. Sections 2 and 3 of the act provided that the society should annually offer and award premiums, regulate the same so that small as well as large farmers might compete therefor, and publish certain reports.
‘ ‘ The obvious purpose of this act was, by the offer of public aid, to «encourage the organization of societies formed for the purpose of stimulating improvements in agriculture and its products by the holding of annual exhibitions or county fairs, and the awarding of premiums open to general competition.
“February 15, 1853 (51 O. L. 333), this act was supplemented by a law now embodied in Rev. Stat. 3700 (Lan. 5948), which provided that the societies then existing or thereafter organized for the purpose to which I have called attention, should become and be corporations, capable, of suing and being sued, and of holding in fee simple real estate as sites whereon to hold fairs.
“The defendant, the Lucas County Agricultural Society, was incorporated and organized under, and in accordance with, the act of February 28, 1846, and the amendments thereto, and on the first day of June, 1870, with moneys furnished by this county, it acquired title in fee simple to twenty acres of land situated in section 33 'Washington township.
"April 18, 1874 (71 O. L. 190), an act was passed by the general assembly, authorizing the county commissioners of this county to levy a tax for a term of years ‘for the purchase of additional grounds and improvements of the grounds of the Lucas County Agricultural Society.’
"By Sec. 4 of this act it is provided that, ‘all grounds purchased and improvements made as aforesaid, shall be under the exclusive control and management of the board of directors of said agricultural society, and the title to all of said grounds and improvements shall be vested in fee in said Lucas county.’
“By virtue of the powers thus conferred, the board of county commissioners, on the twenty-fifth and twenty-ninth days of November, 1882, acquired title in fee simple to about twenty-three acres of land adjoining that purchased by the agricultural society.
"August 13, 1892, the agricultural society entered into a written -contract with the Toledo Exposition Company, a corporation, whereby the former attempted to grant the latter ‘the right and use’ of all said real estate for a term of twenty years. Thereupon the exposition company entered into possession of said real estate, made improvements thereon, and has continuously ever since, remained in the exclusive occupancy and control thereof.”

The court below treated these as conceded facts, and we think that, by the pleadings they are substantially so; this statement may require some slight modification, but, for the purpose of my remarks, it may be treated as true. Most of .these facts are stated in the amended petition; and it is there said that this grant or right under the written contract or license, was in consideration that the Toledo Exposition Company should and would each year hold and give a public fair and exposition of the products of agriculture, horticulture, manufacturing and livestock, and such other entertainment in the branches of industry as shall be of interest and benefit to the people of Lucas county, Ohio, and surrounding country, and that this right was given for that and no other consideration; in short, that the exposition company should hold an annual agricultural fair on these premises. The plaintiff avers that this written license — as it is called in the amended petition — "was made without authority from, knowledge or consent of, the board of county commissioners of Lucas county, Ohio.” And that it was, is, and at all times has been, null, void and of no effect. That the Toledo Exposition Company took possession in pursuance of this license; that it has failed to give such a fair as it was privileged and bound to give upon these premises; ithat it has become and is insolvent and unable to give such fairs; that from the year, 1902, down to the time of the filing of the-petition, it has “not only failed to give any exposition on said grounds, but without any authority whatever, has used and rented said premises, and permitted the same to be used, and is now using and permitting the same to be used for keeping, training and racing horses and selling of beer and other intoxicating beverages, and for other uses and purposes for gain, all 'of which were unauthorized by virtue of said license and contrary to law; and has wholly abandoned the use of said premises, for the purposes authorized by said license by each and all of said acts, the defendant, the Toledo Exposition Company, has forfeited any and all rights which it sought to acquire or did acquire by virtue of said written license,” and that its rights in the premises have ceased and determined, and whatever rights the defendants may have had in the premises have become forfeited to the plaintiffs.

A cross petition was filed by the agricultural society, setting up substantially the same facts with respect to the giving of this license, the consideration for it and the failure of the exposition company to comply with its terms. The prayer of thiá cross petition is against the defendant, the Toledo Exposition Company, for the possession of the premises.

Under the statutes providing for the purchase of these grounds and under which they were acquired, it appears that the legal title to one tract was taken in the county for the use of the agricultural society, and, as we construe it, in order that the agricultural society might use it for the purpose of an agricultural fair, because the agricultural society had no other business or concern with it. The fee was vested in Lucas county. The title to the other tract was taken in the agricultural society, but the law contained a provision as follows:

“When the society is dissolved or ceases to exist in any county where payments have been made for the purchase or improvement of sites for the use of such society, the improvements and real estate shall vest in the county making such payments.”

The county, through the commissioners, is here asserting its right to the possession of the one tract by virtue of its legal title and the cessation of any legitimate use thereof by the agricultural society, and to the other tract under the provisions of the statute that I have jusv read, to the effect that when the society is dissolved or ceases to exist, the improvements and real estate shall vest in the county making the payments. These allegations of the amended petition and the cross petition of the agricultural society are in part admitted, and in part denied by the Toledo Exposition Company; and the exposition company sets up some new matter of alleged estoppel, which is denied by the plaintiff in error.

The answer of the Toledo Exposition Company to the plaintiff’s amended petition “denies each and every allegation in said petition contained which is not herein expressly admitted to be true.” And it is not admitted that it has done any of the things averred with respect to the misuse of these premises which plaintiff claims have resulted in a forfeiture. It is also expressly averred therein that the exposition company has complied in all respects with the conditions of the contract and license, and that it has not done anything unlawful or that should result in a forfeiture.

It appears that the case was tried for some days to the court on the theory that it was an equity case, and the court held the case under consideration for some months, and then concluded that it was not an ,equity case, and what was then done appears from the folowing journal entry, under date of March 12, 1906:

“This day came the parties to this action by their respective attorneys, and thereupon the plaintiffs moved for judgment against the defendant, the Toledo Exposition Company, upon the pleadings filed in this action, and also the defendant, the Toledo Exposition Company, moved for judgment on the pleadings filed in this action dismissing the * cross petition of the defendant, the Lucas County Agricultural Society, and the court being fully advised in the premises, finds the said motion of the said plaintiff for judgment on the pleadings against the defendant, the Toledo Exposition Company, well taken and should be granted, and that on said pleadings the said plaintiffs are entitled to the immediate possession of the real estate described in the amended petition, and that the defendant, the Toledo Exposition Company, is unlawfully keeping plaintiffs out of the same as alleged in said amended petition, to which action and finding of the court, the defendant, the Toledo Exposition Company, then and there in open court duly excepted.”
“And the court further finds that the said motion of the Toledo Exposition Company for judgment on the pleadings against the Lucas County Agricultural Society dismissing its cross petition against the said The Toledo Exposition Company is well taken and should be granted, to which action of the court the defendant, the Lucas County Agricultural Company, then and there in open court, duly excepted. ’ ’

Appropriate judgments follow. The Toledo Exposition Company prosecutes error here to the action of the court in giving judgment against it; and the agricultural society, by cross petition in error, prosecutes error to the finding and judgment of the court against it, dismissing its cross petition.

It appears from the opinion of the court which we have before us —to which I am sure I shall not do full justice in undertaking to state the substance, but which I cannot take time to read in its entirety,— that the court was of the opinion that, by the giving of this lease or. Eeense, and the surrender of possession of these premises and ceasing to hold fairs itself thereon, the agricultural society lost or forfeited all its rights in the premises under and by virtue of the provision of the statute, Rev. Stat. 3705 (Lan. 5959), to the effect that when the society is “dissolved or ceases to exist” in any county, etc., the improvements and real estate shall vest in the county; and further, that the lease or license was so far illegal and void that the exposition .company acquired no rights under it, and therefore, the judgment should award the possession to the board of county commissioners of the county, as against both these defendants; and it was so determined.

This action of the court appears to have been-based largely, if not entirely, so far as judicial authority is concerned, upon the case of Canandarqua Academy (Tr.) v. McKechnie, 90 N. Y. 618. The gist of that ease, so far as the point involved here is concerned, is stated in the first clause of the syllabus, which I shall read:

“The Ontario Female Seminary was incorporated for the purpose of conducting a school for the education of females, and by its charter (Chap. 145, Laws of 1825), it was declared that its funds should ‘be exclusively devoted to female education.’ Plaintiff advanced to said seminary $1,000, under a resolution authorizing such advance on condition that when the seminary ‘shall cease’ it shall return that sum on demand, and shall give security for such return on its real estate. As such security, the seminary, in 1827, gave a mortgage, which recited the resolution and contained a condition to the effect that ‘in the event of said seminary’s ceasing,’ and if it shall not pay said sum on demand, plaintiff could foreclose, etc. Said seminary subsequently executed another mortgage upon the premises, which was foreclosed and the premises sold, and the seminary thereupon ceased to maintain any school and has not since exercised any of its franchises; it was divested, by the sale, of all its real estate, and had thereafter no means to enable -it to keep or maintain any school. Held, that the seminary had ‘ceased’ within the meaning of the contract, and the contingency had happened upon which plaintiff was entitled to demand the sum advanced; that a formal dissolution of the corporation was not necessary, and that upon refusal to pay the money on demand, plaintiff was entitled to foreclose.”

It will be observed that that case turned upon the construction of a contract. A donation of $1,000 had been made, which was to be repaid when the seminary should cease; and we think that the con-.struetion given by the court to that contract was a fair and reasonable one; that the word “cease” was intended to mean and did mean the cessation of the school, and we think this case would be much like that if the legislature had provided that, upon the agricultural society’s ceasing-to maintain or carry on a fair, the property should revert to, and vest in, the county. That is the construction put upon this statute by the court of common pleas, but we cannot bring our minds to accept that construction. While the words in this provision of the statute are “dissolved or cease to exist,” and the coiirt below is of the opinion that “cease to exist” must therefore mean something else or something different from “dissolved,” we entertain the view that that was mere tautology; that “ceases to exist” there means ceases to exist as a corporation, and not merely ceasing to carry on such fair as the corporation should carry on and that the agricultural society is not divested of its right to the property by mere nonuser thereof. We think this view is sustained by a case to which we are cited: Webb v. Moler, 8 Ohio 548. The character of the case is made sufficiently apparent by what is said by Judge Lane, who delivered the opinion. It is very short and I will read it, page 552:

“No proposition is more thoroughly established, than that the franchises of a corporation cannot be forfeited without a judgment either on scire facias or quo warranto. Abundant authorities are cited to this effect in the argument.’
“The court of common pleas seems to have considered, that although corporate franchises cannot be divested without a judicial sentence, corporate property might be lost by nonuser aloné. No such distinction is known in law. The capacity to hold land is one franchise. The grant of land to a corporation is called, by Blaekstone, ‘an estate for life, which inay endure forever, or which reverts to the donor only when the life of the donee is terminated.’ 1 Blaekstone’s Commentaries 484.
“Among the multitude of authorities bearing on this point, it is enough to refer to two from New York: Vernon Society v. Hilas, 6 Cow. 23; All Saints Church v. Lovett, 1 Hall 97. The doctrine these authorities declare is, ‘That proceedings of trustees of a corporation, de factof are valid until ousted by a judgment in a proper suit, and that no advantage can be taken of any nonuser, on the part of a corporation, by any defendant in a collateral action. ’
‘ ‘ The trust of a charity is not lost by the trustees ’ neglect of duty. If it' cannot be carried into execution, the land may revert to the donor. But where it can be enforced, a court of chancery will furnish all needful relief.”

Of course it is not pretended bere by the representatives of the county that the corporation has been dissolved or that it has ceased to exist, in the sense that it is no longer a corporation. We think it fairly appears from the pléadings and is an assumed fact in the ease, that the organization is kept up, and we are of the opinion that it may be rehabilitated; that it may resume' its functions and duties as a corporation, and that if it had such rights as it asserts against the exposition company it may repossess itself of this property and enter upon the holding of agricultural fairs, for aught that appears in the pleadings in the. ease.

Entertaining these views, we hold that the judgment on the pleadings as against the agricultural society — for it is in effect that — that, the plaintiff has a right to the possession of these premises — is wrong. Eeasons why the right of possession may have been forfeited by, or possession may be taken away from, the agricultural society and full dominion over the property may be given to the county, may appear in the further progress of the case; .but we are of thé opinion that the giving of this lease or license, and the ceasing upon the part of the agricultural society to hold annual fairs, do not alone and ipso facto, deprive it of its right of property or its right of possession of, and control over, the property.

As to the exposition company, it appears to us that it is a mere tenant of the agricultural society. Whether it has forfeited its right to the agricultural society so that the agricultural society may resume possession of these premises, we need not now determine. It has a right to stand here on its defenses under the title and right of the agricultural society, and we conceive that its rights do not fall below and cannot rise above, those of the agricultural society. The plaintiff, to prevail against these two defendants, must, as a necessary part of its case, make it appear that the agricultural society has lost all its rights, whereby the county has full right to possession as against both defendants. Therefore, it appears to us that a judgment against the exposition company on the pleadings is necessarily erroneous.

I now come to a consideration of the ease presented upon the cross - petition of the agricultural society and the action of the court thereon. It fairly appears from these pleadings and the arguments of counsel, and, indeed, counsel very candidly declare that the board of county commissioners and the agricultural society are working in harmony; that they are indifferent about which one prevails against the exposition: company. But they are not here in the same right; they are not here standing upon the same premises; they are not here asserting joint rights, but they are standing upon independent grounds; the county is 'Claiming the right to possession for itself and the agricultural society ■claiming the right to possession for itself. The board of county commissioners has brought what we are in the'habit of calling “ejectment,” —a short and easy name used for this style of action, because it closely Resembles the old action in ejectment, — against the exposition company, and, as we view it, against the agricultural society. The agricultural society, by its cross petition, brings an action of ejectment on its own behalf against the exposition company.

It is said that they may do this under the code, either by cross petition to determine the rights of all the parties in the subject-matter, or by way of counterclaim. When this cross petition was filed, a demurrer to it was filed by the exposition company, the claim of that company being that this was not properly a counterclaim; that it was not the kind of a claim that could be asserted by a cross petition in the action. A majority of this court are of the opinion that that contention was correct. This demurrer was overruled.

A motion was afterwards made to strike the cross petition from the files; and we think that, insofar as it is a cross petition, it should have been stricken from the files — it ought to have been gotten out of the case in some way. We are of the opinion that one action in ejectment may not be engrafted or spliced upon another action in ejectment as attempted here.

We know that the provisions of the code are very liberal, and that its purpose is to settle, as far as possible, all controversies between parties respecting the subject of an action, and that in cases where land is to be sold and a fund distributed, where there are equities to be determined, and in a variety of actions of that sort, everything that might have been done formerly in an action at law and by a bill in equity touching the same subject of an action, may be done now in a so-called civil action, but we have no knowledge of any case where two actions, distinctly at law, carried on for the recovery of the possession of real estate, have been sustained by the court. If the plaintiff should fail in the action which it brings into court for the possession of this real estate, it would not have the least interest in the action of the agricultural society on its so-called cross petition.

It is difficult to see how the case could well be submitted to a jury without very great confusion and difficulty, and we do not think it is the purpose of the code'to promote confusion in trying to effect the purpose of preventing a multiplicity of actions. If the board of county commissioners had brought an action against these two defendants charging them with trespass, we think it would have been a very strange and unwarranted proceeding for one of the defendants in the same action to file a so-called cross petition or counterclaim against bis co-defendant admitting that a trespass had been committed but alleging-that it was committed by the codefendant against it and not against the plaintiff, and asking that it might have a judgment on account of the trespass. We think that in this character of suit the subject of the action is the claim of the plaintiff to possession of the premises. It is so held in a number of authorities in New York to which our attention has been cited, and we know of nothing directly upon the subject in this state. It is true that there are a variety of actions in which the subject of the action is the land itself, but we think that is not so in an action of ejectment.

The case of Brown v. Kuhn, 40 Ohio St. 468, is a case where the facts are complicated, and I shall not try to state them, but I will call attention to a remark by Judge Granger in his opinion. At page 486 this is said:

“But the law does not allow two petitions by different plaintiffs, in the same action. 'It does not permit a petition containing different causes of action in one of which one set of plaintiffs are alone interested, and a second in which another set of plaintiffs are alone interested.”

And it is pointed out that the answer could properly seek relief only touching the subject-matter set up in the petition. What is quoted does not make very clear what was involved, and it could not be made-very clear without taking more time than I care to devote to the case, but it indicates the -views of the court on the subject of two? actions at law traveling along parallel lines in the same case against the same defendant — that it is not permitted and cannot be done. If the agricultural society conceived that it had a cause of action to, recover possession of these premises from its tenant, it should have instituted an action in that ,behalf. The purpose the parties appear to have in view might be accomplished through the acquisition by the county of the rights of the agricultural society, so that the county could sue not only in its own right, but in the right which it now appears to us is lodged in the agricultural society. I merely suggest that, but I have not thought it out; and it may be entirely impracticable. But they are not here in the same right now; they are asserting entirely independent claims, each on behalf of itself, to recover this property from the -exposition company, and this, we think, cannot be done.

Insofar as any pleading that the agricultural society has filed or may file constitutes an answer to the claim of the plaintiff, insofar as it may be available for the purpose of combating the claim of the plaintiff, whether you call it ah answer, or cross petition, or counterclaim, or what not, so far as it may stand in opposition to the claim of the plaintiff rather than as an independent claim on its own behalf against the exposition company, we think it should stand; that the agricultural society should remain in court to make its defense. We hold, however,, that the order of the court dismissing its cross petition, is not erroneous,, unless it may be open to the construction that the dismissal was on the merits and not without prejudice. The judgment of the court of common pleas against the exposition company will be reversed; that part of the judgment dismissing the cross petition of the agricultural society will be modified so that it may not prejudice the society in any future action on the same cause of action. As I have indicated, we regard the agricultural society a proper defendant and still in court for the purpose of asserting offensively apy claim that it may have against the claims of the plaintiff.

Haynes, J., concurs.

WILDMAN, J.,

dissenting:

I am unable to concur with the majority of the court as to the disposal of the cross petition filed by the Lucas County Agricultural Society. On all other questions involved in the case I am in accord with my associates.

The action was brought in the lower court by Kerr and others, as county commissioners, asserting both title and right of possession in the land in controversy. The agricultural society and the exposition company were both properly made defendants. The exposition company was in possession and the agricultural society, equally with the plaintiffs, was a claimant to both title and possession. Its claims were adverse to those of the other parties and were “connected with the subject of the , action,” which, as I view the law, was the land in dispute.

The majority of the court seem to place some reliance on supposed adjudications in New York as to the scope of a counterclaim under our code procedure, defined in Rev. Stat. 5069 (Lan. 8584), and treat the “subject of the action” as “the claim of the plaintiff to possession of the premises.”

The claim of the plaintiffs is larger than a mere possession; they assert title as well as right to possession, and the claim of the agricultural society, as alleged in its cross petition is equally broad.

These claims are inconsistent and adverse. They are connected with the land, and the land itself, rather than the claim of either party to it, is the “subject of the action.” The rights asserted constitute the “causes ©f action,” not its subject.

That this is the proper distinction is clearly indicated in several adjudications and text-books, and has been recognized even in New York. See language of the opinion in Glen & Hall Mfg. Co. v. Hall, 61 N. Y. 226, 236 [19 Am. Rep. 278], where the “property” is said to be the “subject of the action” in a “real action” (such as the one before us), although it may in some other eases be a “violated right.”

Bliss, Code Pleading Sec. 127, says that the New York court of appeals has been less liberal than other courts in its construction of the phrase “subject of the action,” as applied to counterclaims, and in Sec. 126 says that the land is the subject of the action in ejectment. Phillips, Code Pleading, gives substantially the same rule both as to land in ejectment suits and as applied to personal property in replevin suits. See also Phillips, Code Pleading Sec. 181, note 1; Secs. 252 and 330; and Lovensohn v. Ward, 45 Cal. 8, 10.

In our own state this rule was applied to personal property in Morgan v. Spangler, 20 Ohio St. 38; and in Peter v. Foundry & Mach. Co. 53 Ohio St. 534 [42 N. E. Rep. 690], definitions and principles were adopted and enunciated which seem to me decisive of this question in Ohio. See pages 552 to 556 inclusive, in which Judge Bradbury discusses and construes several sections of our civil code of procedure applicable to counterclaims, cross petitions and the scope of the court’s jurisdiction when invoked.

In the case at bar the court had all parties asserting title to the land in controversy before it; their claims were adverse and related to the same land; and under the policy of our liberal code of preventing a multiplicity of suits, the agricultural society should, in my judgment, be permitted to litigate its claims against not only the plaintiffs, but its codefendant. The complexity of issues or difficulty of trying them to a jury is not so great as in many a case of set-off or counterclaim clearly permissible under the code; but, however complex or difficult, the cross petition asserted what our statute defines as a counterclaim:

“A counterclaim is a cause of action existing in favor of a defendant, and against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action, * * * or connected with the subject of the action.” Revised Statutes 5069 (Lan. 8584).

No question is or can be made that under Rev. Stat. 5006 (Lan. 8521), the agricultural society was not properly made a defendant, and Rev. Stat. 5311 (Lan. 8827) provides that the court “may determine the ultimate rights of the parties on either side, as between themselves,” and Rev. Stat. 5782 (Lan. 9319) gives to a defendant in an action to recover real estate, special and express power to plead such counterclaim” as he has or might have in any other form of action, whether they are such as have heretofore been denominated legal or equitahie or both. ’ ’


author: WILDMAN, J.

text:
    NEGLIGENCE — WRONGFUL DEATH.
    [Lucas (6th) Circuit Court,
    June 23, 1906.]
    Parker, Haynes and Wildman, JJ.
    Toledo Rys. & Light Co. v. Clara Rippon, Admx.
    1. Electric Wire, Heavily Charged, Negligently Placed near Telegraph Wire, is Proximate Cause of Death of one Coming in Contact with Latter.
    Where a company engaged in furnishing and transmitting electricity for lighting and power purposes negligently places its wires in too close proximity to the wire of a telegraph company, so that a storm, deranging such wire, produces a contact, and a workman of the latter company, engaged in repairing its wire, is killed hy the powerful current, such negligence of the light and power company is the proximate cause of the death.
    '2. In Action eob Wrongjoj. Death, Charge that Decedent is Presumed to have Used Ordinary Care not Prejudicial.
    A charge to the jury, in an action for wrongful death, that the decedent is presumed to have used ordinary care, is not prejudicial to the defendant if the jury are not led to believe by any further instruction that they must do more than simply find contributory negligence from a preponderance of the evidence.
    3. Escape of Dangerous Electric Current not Per Se Negligence.
    Where a dangerous current of electricity is allowed to escape from the wires of the company supplying it, this does not establish negligence per se ■ in such company in an action against it for injury sustained by reason of such escape. The burden is still on plaintiff to show that negligence actually existed.
    ERROR to Lucas common pleas court.
    Smith & Baker and W. H. McLellan, for plaintiff in error ;
    C. A. Thatcher, for defendant in error:
    Duty of electric light company to see that its wires are properly placed and insulated. Brown v. Illuminating Co. 90 Md. 400 [45 Atl. Rep. 182; 46 L. R. A. 745 ; 78 Am. St. Rep. 442]; Bowe v. Telephone ■Co. 66 N. J. Law 19 [48 Atl. Rep. 523]; Moran v. Steam-Engine Co. 21 R. I. 386 [43 Atl. Rep. 874; 45 L. R. A. 267]; Anderson v. Electric Light Co. 64 N. J. Law 664 [46 Atl. Rep. 593]; Overall v. Electric Light ■Co. 20 Ky. App. 759 [47 S. W. Rep. 442],
    Electricity classed with explosives and other dangerous agents. Warren v. Railway, 19 Am. Neg. Rep. 21 (Mieh.).
    Judicial notice of possibility of safe conduit of electricity. Alexander v. Light Co. 209 Pa. 571 [58 Atl. Rep. 1068; 67 L. R. A. 475]; on this question, see, also, McLaughlin v. Electric Light Co. 100 Ky. 173 [37 S. W. Rep. 851; 34 L. R. A. 812]. .

      Assumption of risk. -Stevens v. Gas & Elec. Co. 73 N. H. 159 [60 Atl. Rep. 848; 70 L. R. A. 119]; Newark Elec. Light & P. Co. v. Garden, 78 Fed. Rep. 74 [23 C. C. A. 649; 39 U. S. App. 416]; lllingsworth v. Electric Light Co. 161 Mass. 583 [37 N. E. Rep. 778; 25 L. R. A. 552], Mahan v. Railway, 19 Am. Neg. Rep. 15 (Mass.); Warren v. Railway, 19 Am. Neg. Rep. 21 (Micb.) ; Clements v. Electric Light Co. 44 La. Ann. 692 [11 So. Rep. 51; 32 Am. St. Rep. 348; 16 L. R. A. 43]; Choctaw, 0. & G. Ry. v. McDade, 191 U. S. 64 [24 Sup. Ct. Rep. 24; 48 L. Ed. 96]; Texas & Pac. Ry. v. Archibald, 170 U. S. 665 [18 Sup. Ct. Rep. Ill; 42 L. Ed. 1188]; Schweinfurth v. Railway, 60 Obio St. 215 [54 N. E. Rep. 89]; Rev. Stat. 3471-3 (Lan. 5600).
   WILDMAN, J.

This is a proceeding in error to reverse the judgment of the court below in favor of the administratrix of the estate of Robert Rippon, deceased, and against the railways and light company, based upon the verdict of a jury, for $4,000.

Robert Rippon was an employe of the Western Union Telegraph Company, and while in the discharge of his duties, he was killed by coming in contact with an electric wire of that company which had been charged with a powerful and fatal current of electricity escaping from the wires of the railways and light company. ,

The case is not complicated by any particular dispute as to the negligence of the defendant company. By Rev. Stat. 3471-3 (Lan. 5600), the railways and light company is charged with a certain duty of protection of its wires so as to prevent the escape of a dangerous current of electricity therefrom. After providing that a company organized for the purpose of supplying electricity for power purposes and for lighting streets and buildings of municipalities may have certain privileges and franchises essential to the carrying on of their work, the statute provides further that,

“All wires erected and operated under the provisions of this act shall be covered with a waterproof insulation, and said poles, piers, abutments and wires shall be so located and arranged as not to interfere-with the successful operation of existing telegraph and telephone wires. ’ ’

The mischief here was caused, as the petition claims and the evidence, we think, sufficiently discloses, by the placing of one of the power wires carrying a large voltage of electricity in too close proximity to-one of the wires of the telegraph company, which had theretofore been conducted into the building and to a clock moved by the power of. am electric current. The defendant power company, some two yeará or so after the telegraph wire had been so carried into the building and connected with the clock, placed one of its wires for the conduct of the larger and dangerous current within the same porcelain duct in the wall of the building, so that the two wires were brought almost in contact, and although at the start, perhaps, sufficiently insulated, the insulation was liable to become frayed and rubbed away by the friction of the wires against each other, by reason of action caused by winds or storms or otherwise; and it is said that snow was liabie to collect •within the porcelain duct between the wires or against them, so as to afford further means for the passage of the current, by induction from the one wire to the other.

Just previous to the fatal occurrence which is made the basis of . this action, a severe storm had deranged the wires of at least the telegraph company, and it had become necessary to do some> repairing or remedying of the difficulty. It is unnecessary that I should go into the details. It is sufficient to say that while Mr. Rippon was engaged in restoring the wires to their proper state of usefulness and rendering them safe, by reason of the crossing of one wire with another he received the current of electricity in his body which caused his death. We think there can be no question that the jury was justified in finding the defendant company negligent in the manner in which I have indicated. Not only did the evidence tend to show negligence in the placing of these two wires in juxtaposition or in dangerously ( close proximity to each other, but we think that the jury was abundantly warranted in finding such evidence sufficient.

It is urged that the defendant power company owed no duty to an employe of the telegraph company. Probably it did owe no special duty to such employe; no duty other than that which might arise from the knowledge of the power company that the escape of a dangerous current of electricity from its wires might cause death or injury to ány person, whether employed by the telegraph company, or who, by reason of any other fact, should come in contact with a wire of the telegraph company which, under other circumstances, would not be attended with danger. This question as to what duty was owed by the power company to any person who might be placed in peril by reason of its negligent act, is closely connected with the question of proximate or remote cause. This court has had occasion to examine with considerable care a case in which almost precisely the' same question arose, wherein the firm of Marsh et al. of Norwalk, was one of the parties plaintiff associated with certain insurance companies, and Andrew E. Bang, receiver Of the Lake Shore Electric railway, and several other companies, were made parties defendant. The ease is Marsh v. Railway, 28 O. C. C. 9. This case affirmed the judgment rendered in the court below, and Marsh v. Railway, 50 Bull. 189, contains the entire «charge of the trial judge, who, as it happens, was myself, in the court of common pleas. The questions involved in that case were so interesting, and, in some respects novel, that they called for a pretty careful examination of numerous adjudications under the comparatively new conditions which have arisen with the rapid progress of applied electrical science. In the charge, which was approved by the circuit court, I said to the jury, page 196:

“A negligent act or omission to act becomes direct and proximate in its relation to a claimed event when the event is the natural and probable result of such negligent act or omission and one which in the light of circumstances should have been foreseen as likely to occur.”

Now, the attorney for the plaintiff in error here urges that this event in the case at bar, cannot be deemed proximate unless the defendant company could have foreseen the particular event as likely to occur. He does not so say in words, but that is the substance of one portion of his argument; in other words, that unless in the exercise of ordinary foresight the -power company could have foreseen that an employe of the telegraph company, in repairing wires which had been somewhat demoralized by a storm would be placed in such a position of danger that the negligence of the power company might cause his' injury or death by permitting a heavy current of electricity to reach the wire of the telegraph company, such negligence would not render the company liable. But this question was met in Marsh v. Railway, supra, to which I have referred, in another part of the charge which I gave. Having charged with, considerable detail and with some elaboration along the line of this question of proximate and remote cause, I said to the jury in qualification this, page 196:

“In this connection it is proper that I say to you as I do, that to make negligence a proximate cause of. an injury it is not necessary that the precise result which occurred should have been anticipated. If in the light of the circumstances, results of that general character should have been anticipated by ordinary foresight as likely to occur, that would, so far as that question is concerned, be sufficient.”

So here, if in the exercise of ordinary foresight the power company should have realized that the negligent escape of a powerful current of electricity from its wires might cause injury to a person how,ever employed, however situated, and in whatever part of the city where the network of wires of these companies extends, then the negligence, if it resulted in injury or death to a person in any part of the city and however circumstanced, might be deemed the proximate cause of such, injury or death.

The company, of course, was not held to the anticipation of extraordinary events. But surely a storm which deranges to some extent the wires of electric companies is not an extraordinary event; we have those occurrences a number of times in one season, perhaps. We know' that the employes of the companies are required to go out immediately" after storms to adjust the defects and troubles which have occurred by reason of the storms. These are not events which are unprecedented or unusual so that the companies are not held to guard against them.

I have, perhaps, dwelt too long upon the negligence of the defendant company and its relation to the death of Rippon, but it has seejned to me well enough to suggest these general principles,«applicable to cases of this character which are not unlikely to come with greater and greater frequency as the companies employing agencies of this kind multiply in number.

The questions which have called for the larger discussion in this case grow out of the claims of the assumed hazard and contributory negligence of the decedent. Here the burden rested upon the defendant. It is claimed by the power company that there was sufficient evidence; to show beyond dispute that this man ought not to have received the injury even if the defendant company was negligent; but we think that it was a fair question for the jury. It is urged with much earnestness by counsel for plaintiff in error that the decedent was charged with the duty of inspection of the appliances of the telegraph company, and that in the exercise of his duties he should have discovered the dangerous condition of the wires at the point of entry into the building. We have-examined the record. It appears to us that his duties called upon him to examine the electrical clocks of the telegraph company, but we are not convinced, as counsel seem to think we should be, that he must have; known — that as a matter of law he should have known — that the power company had placed one of its highly charged wires in close proximity to a wire of the telegraph company. We think that the jury were justified in attaching some force to the fact that for a long time the wire of the telegraph company had remained in a reasonably safe condition, passing through this porcelain duct without being brought into the; neighborhood of a dangerous wire. We think it not clear that in the examination of the clocks to see whether they were working rightly, his; attention would necessarily be called to the condition of the wires where they entered the building, and especially do we think that his attention would not necessarily be called to the fact that a change had been at some time made in the condition of the wires from that which had existed for a long time before, when possibly he may have noticed them. Much more might be said upon the subject, but I think it enough to say that it was a question of fact, properly left to the jury for its consideration, and that the verdict is not so clearly against the weight of the evidence in this regard that either the court below or this court would be justified in disturbing it.

It is said that the court erred in some instructions in the general charge, and also in its refusal to give an instruction asked by plaintiff in error. One instruction to which reference has been made in argument, embodied in the charge of the court, is substantially that a presumption existed in the case, and remained throughout, that the plaintiff was not guilty of contributory negligence or that he exercised ordinary care. I will not attempt to repeat the precise words and I will not stop to examine the record for a more exact quotation, but I have stated the substance of the instruction with regard to which complaint is made. It may or may not be true that such a presumption of law exists.

Persons in official positions are presumed to discharge their duties. Individuals, whether in official positions or not, are presumed to be innocent of wrongdoing. Possibly the same presumption may arise — we do not say that it does — that persons exercise that care which is ordinarily exercised by persons of ordinary prudence. But at any rate, whether there be such presumption recognized by the adjudications of the courts or not, the instruction to the jury, that the decedent was presumed to have exercised ordinary care called for no other action on their part or consideration of the evidence than that which the court finally gave to them; and that is, that the negligence, the lack of ordinary care, must be shown by a preponderance of the evidence. The court did not say, nor is the inference to be drawn from what was said, that the jury were required to do something more by reason of the suggested presumption than to find negligence by a preponderance of the evidence. So, even if the court were technically wrong in saying this to the jury, no prejudice resulted from it.

It is said that the court erred in not giving after the general charge an instruction which was asked by the plaintiff in error. I will not stop to read it. It is enough to say that the court had sufficiently -covered the point in the general charge, and especially in a sort of a conversation which arose between the judge and counsel who is now Criticising the action of the court in refusing to give the instruction finally asked. We think that the court did not err in refusing it.

Some suggestion was made in argument, in the discussion of the claimed negligence of the defendant power company as to the rule which will apply when a dangerous current of electricity is permitted to escape from the wire of the company which should control it. The courts of the different states are not altogether in harmony upon this question. In one or more the rule has been adopted that a conclusive presumption of negligence arises in such a case. In other words, that it is negligence per se to permit the currént to escape. In other jurisdictions it has been held that while no such conclusive presumption arises, the burden shifts and that it becomes encumbent upon the company which permits the escape of the electric current to show that it was not negligent. In Marsh v. Railway, supra, to which I have referred, this question was fully considered. The authorities had been marshalled and examined, and in the consideration which I gave to the case in the court below, I concluded that the general rule should not be departed from and an exception introduced into our jurisprudence, and, therefore, I held that the burden still rested upon the plaintiff to show the negligence of the defendant; that while the defendant under such circumstances may be held to a high degree of care, that it is still but ordinary care under the circumstances, commensurate to the dangers to be apprehended, but the burden does not shift. The circuit court, as I have said, affirmed the conclusion of the trial court in this as in the other respects, and that point was especially discussed by Judge'Winch, who sat in the circuit court in my stead and delivered the opinion.

No complaint is made as to the amount of the verdict in this case, and a search of the record fails to disclose any other matter in which the plaintiff in error has been prejudiced by any claimed errors. We think "that the judgment of the court below should be affirmed.

Parker and Haynes, JJ., concur.