author: PARKER, j.

text:
    INSURANCE.
    [Wood (6th) Circuit Court,
    September 28, 1901.]
    Haynes, Parker and Hull, JJ.
    National Insurance Company v. Charles Strong.
    1. Failure to Insert Entry of Cash Value of Property Does not Defeat Recovery on Insurance Policy, When.
    A proof of loss made to an insurance company upon a blank form furnished by such company is not insufficient for the reason that no entry of the cash value of the property just previous to .its destruction is made in the column provided' for that purpose, where the amount of the loss and the fact that it was total with all the other information which the insured is required to give appear elsewhere in the proof of loss.
    2. Sufficient Magistrate’s Certificate of Loss.
    Under a clause in. an insurance policy which provides that the insured shall, if required, furnish the certificate of a magistrate or notary "* * * stating that he has examined the circumstances and believes the insured has honestly, sustained loss of the amount stated, a certificate of a justice of the peace upon a proof of loss, stating that he has personal knowledge of the building described therein and honestly believes the insured has fully sustained the loss stated, is sufficient.
    Erpor to the court of common pleas of Wood county.
    Stephens & Lincoln and D. R. Jones, for plaintiff in error.
    Chas. H. Stephens, for plaintiff in error:
    The furnishing of proof of loss in accordance with the terms and requirements of the policy is a condition precedent to the right to sue, whether the loss be partial or total. Home Ins. Co. v. Lindsey, 26 Ohio St. 348; Farmers’ Ins. Co. v. Frick, 29 Ohio St. 466; Moody v. Insurance Co. 62 Ohio St. 12 [38 N. E. Rep. 1011; 26 L. R. A. 313]; Eureka F. & M. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57]; Shapiro v. 'Insurance Co. 53 N. W. Rep. 463 [51 Minn. 239]; Underwood v. Joint Stock Co. 57 N. Y. 500, 502; Armstrong v. Insurance Co. 130 N. Y. 560, 565 [29 N. E. Rep. 991]; Peabody v. Sátterlee, 166 N. Y. 174 [59 N. E. Rep. 818]; 2 May, Insurance (4 ed.) Sec. 466'; Aetna Ins. Co. v. Bank, 62 Fed. Rep. 222 [10 C. C. A. 342, 346; 8 U. S. App. 554] ; Ostrander, Fire Insurance (2 ed.) Sec. 233; Lane v. Insurance Co. 52 N. W. Rép. 649 [50 Minn. 227; 17 L. R. A. 197] ; Johnson v. Insurance Co. 112 Mass. 49, 51, 52, and cases there cited; Kelly v. Sun Fire Office, 141 Pa. St. 10, 21 [21 Atl. Rep. 447], and cases there cited.
    Sufficiency of proofs. Hamilton v. Insurance Co. 6 O. F.' D. 587 [136 U. S. 242, 255; 10 Sup. Ct. Rep. 945]; Bryant v. Insurance Co. 55 Ohio St. 690 [48 N. E. Rep. 1110]; Hamilton v. Insurance Co. 4 Dec. 407 (29 Bull. 209).
    James O. Troup, for defendant in error:
    As to the sufficiency of the proof of loss. Queen Ins. Co. v. Leslie, 47 Ohio St. 409, 415 [24 N. E. Rep. 1072; 9 L. R. A. 45]; Springfield F. & M. Ins. Co. v. Hull, 51 Ohio St. 270, 287 [37 N. E. Rep. 1116; 25 L. R. A. 37],
    Total loss. Phcenix Ins. Co. v. Fish Co. 7 Circ. Dec. 468 (14 R. 160); Pennsylvania Ins. Co. v. Brackett, 63 Ohio St. 41 [57 N. E. Rep. 962]; Joyce, Insurance Sec. §125.
   PARKER, j.

(Orally.)

In the court below Charles Strong brought suit against The National Insurance Company to recover on account of an alleged total loss by fire of a building covered by a policy of $1,200, issued to him by said company.

The petition set forth a copy of the policy, alleged the loss, and compliance by plaintiff with all the conditions of the policy on his part. The answer denied that the loss was total, and averred that plaintiff had failed in several' respects to comply with certain conditions of the policy as to furnishing proof of loss. These alleged shortcomings and defects in the proof of loss constitute the chief ground of contention, and will be hereafter referred to somewhat in detail. The insured recovered as for a total loss. The insurance company prosecutes error to-obtain a reversal of the judgment and a setting aside of the verdict of the jury. The record discloses objections and exceptions during the progress of the trial upon the admission and rejection of evidence, which we have examined into, but as these matters have not been much discussed in oral argument or in briefs of counsel for plaintiff in error, and do not seem to be much relied on, we simply announce that we find no material error therein prejudicial to the company.

By answers to interrogatories submitted at the instance of the company the jury stated that the loss was total, and that there was no evidence to show that any part of the walls were left standing after the fire which were used without change and incorporated into the new building erected on the site of the building destroyed by fire. We cannot find that these conclusions are against the weight of the evidence.

The objections urged against the proof of loss .were raised and presented by a motion to direct a verdict, request to charge, and exception to the charge, so that if the contention of the company is well grounded the questions are made and saved in due form. The policy provides that the amount of loss “shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of loss have been received by this company in accordance with the terms of this policy.” Also that, “if fire occur, the insured shall give immediate notice of any loss thereof in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; andj within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to the company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon, * * * and shall also,if required, furnish a certificate of the magistrate of notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary shall certify.” Also, “the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company.” Also, “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.” Also the provision that “This policy is made and accepted subject to the foregoing stipulations and conditions,” etc. The policy contains many other stipulations and conditions usual in fire insurance policies, but the few above quoted are all that seem to be involved in this controversy. There was much correspondence between the insured and the company relative to proof of loss transmitted by the former to the latter, but as none of this resulted in any modification of the contract or waiver by either party of the terms, we need not dwell upon this phase of the dispute. Certain proofs were submitted, and upon them the insured rests his claim, and upon the alleged insufficiency of these, the compan)^ rests this branch of its defense. The company, in its answer, avers that the proof of‘ loss furnished was insufficient in that (1) it did not set forth the cash value of each item insured, nor (2) the amount of loss thereon, nor (3) did the certificate of the magistrate furnished by the insured state that he had examined the circumstances of the fire, nor (4) did he set forth in his sworn proof of loss the “sound value” immediately preceding the fire of the property destroyed, but he amended the same by inserting said “sound valtie” after he had sworn to his proof of loss, and he did not thereafter reverify the same. The policy insures the insured in the sum of $1,200 upon a store building. The proof of loss sets forth that the loss upon the “first item” is total. There is but one item in the policy. The form of the statement of the value and the amount of- the loss, in the proof of loss as submitted on a blank furnished by the company, was as follows :

“The actual cash value of each specific subject thus situated and described by the aforesaid policy at the time of loss, and the actual loss and damage by said fire to the same, as shown by annexed schedule, and for which claim is hereby made were as follows:

These columns are extended for additional items. It seems that the company designed the first column in the schedule marked “Sound value” for the insertion by the insured of the “cash value” mentioned in the part of the policy quoted, and that it understood that to mean the cash value immediately preceding the fire, whereas, the insured in making out the proofs, understood this to refer to the cash value after the fire, and so he inserted the words “None unless it should be the brick.” Afterwards, this was amended by the insured, by the insertion in the blank of the words, “The west half of above brick block 43 x 62 ft., was worth immediately preceding the fire not less than twenty-one hundred dollars,” and the proof of loss thus amended was again submitted to the company. The objection to the first statement is, that it does not give the cash value at all, and the objection to the second statement is that it was not verified. That such statement is material or requisite, in view of Sec. 3643 Rev. Stat., and the averments in the answer that defendant has never “denied liability to the plaintiff except on the ground that he had failed to furnish proper proof of loss in accordance with the terms and conditions of the policy,” and the absence therefrom of any charge of fraud or change increasing the risk, is not clear, but we do not find it necessary to pass upon that point. Neither the policy nor the form for making proofs of loss are entirely clear as to the meaning of this “cash value,” or “sound value.” Assuming, however, that it means the “cash value” or “sound value" immediately preceding the fire) and that, therefore, the answer “none,” etc., was wrong, and failed to give the information sought, yet it was not misleading or in anyway harmful to the company, and if the information sought, and that the insured was bound to give, was otherwise given in the proof of loss, that was sufficient, and the subsequent amendment was unnecessary.

"Was such information given in the unamended proof of loss? It seems to us that it is clearly and distinctly stated therein that the “sound value” or “cash value” before the fire was at least $2,000. The statement is that the loss was total, and that it amounted to $2,000. This could not be true unless the sound value just before the fire was as much as $2,000. As to this “item/’ when these statements were made, títere was no need of any filling in of the column as to “sound value.” Lycoming Co. Mut. Ins. Co. v. Schollenberger, 44 Pa. St. 259. The statement that this property was “destroyed” (the words “of damaged as hereinafter set forth in detail” being striken out) occurred in another place in these proofs of loss; and in the more informal proof previously submitted it is stated that the property was “totally destroyed” and the insured suffered “a total loss.” We hold that the unamended proofs of loss were sufficient in this respect, and therefore will not discuss the debated question of the effectiveness of the amendment, the whole of the material facts touching which amendment have- not been stated by us. .

The fifth objection falls to the ground with the disposition of the first. The second objection that the proofs do not state the total loss on each item appears to be entirely unfounded. The statement is that the loss was $2,000, and that $1,200 is claimed under this policy.

As' to the fourth objection. The certificate of the magistrate is endorsed on the back of the proof of loss, and is as follows:

“I, the undersigned, a justice of the peace of Montgomery township, Wood county, Ohio, having examined this proof of loss signed by Chas. S. Strong, of Freeport, Wood county, Ohio, and having personal knowledge of the building described herein, I honestly believe that said Chas. S. Strong has sustained fully the loss acknowledged by him before J. M. Goodrich, Notary Public, Feby. 12, 1900.
“Frank Fike, justice peace in and for
“Montgomery township, Wood county, Ohio.
“2/12, 1.900.”

The proof of loss was verified by being sworn to before the notary public named. The record discloses that Justice Fike was duly qualified by being the nearest disinterested magistrate. But the company insist that this certificate does not set forth that the magistrate has “examined the circumstances” as required by the policy. Just how he shall proceed and to what extent in “examining the circumstances,” the policy does not specify. Whether by viewing the site of the destroyed building and examining the evidence thus afforded (which ordinarily would not furnish much information as to the origin of the fire), or by taking the testimony of such witnesses as may be available, or by taking the unsupported statements of the insured, if deemed credible, the policy is silent., He is to certify that he has “examined the circumstances” and that he believes the insured has honestly sustained a loss of an amount stated. He is to make such examination as satisfies him and makes him willing to certify as an officer that the loss was honestly sustained and was of a certain amount. The magistrate having reached his belief by such examination of- the circumstances as was involved in examining a clear and particular statement of all the circumstances of the fire made by the insured under oath, in connection with his own personal knowledge of the building, and having so certified, that complied with the requirements of the policy.

The certificate is informal also in that it fails -to set forth in the terms used in the policy that the magistrate believes that the loss was honestly sustained; but the adoption and endorsement of the statements of the insured in his proof of loss as to the origin of the fire is equivalent to the statement that the loss was honestly sustained.

This disposes of the points especially urged upon our attention. We find no error in the record requiring a reversal of the judgment, and it is hereby affirmed.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    SLANDER — PLEADING.
    [Erie Circuit Court,
    December Term, 1902.]
    Parker, Hull and Haynes, JJ.
    O. E. Phillips v. Michael LeJune.
    1. Plaintiff not Required to Elect Between Language Pleaded and Other Slanderous Language in Evidence.
    In a slander case the only language which can be recovered upon is that complained of in the petition, and the plaintiff will not be compelled to elect whether he will proceed upon the language set forth in the petition or other slanderous words disclosed by the evidence. Language not pleaded can be considered only for the purpose of showing malice.
    2. Injury to Feelings an Element of Slander.
    In slander, injury to the feelings of plaintiff may be presumed and considered by the jury. Hence, the plaintiff may properly offer evidence as to the effect of the language complained of, upon him, as that his feelings were wounded and that he was unable to sleep in consequence thereof.
    S. Words Imputing Crime Relating to Transaction not Criminal not Slander.
    An action of slander" cannot be maintained for words which impute a crime, where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was not criminal, and that they must have been so understood by the hearers. Undivided crops on a farm are not the subject of larceny by the tenant, nor does charging a tenant with stealing apples, held in common, impute a crime upon which slander may be based.
    4. Intent of Slanderous Words, Question for Jury.
    Whether the defendant, in an action for slander, in using the alleged slanderous words, intended to charge .a crime, is a question for the jury.
    5. Facts Determining Allowance of Punitive Damages for Jury.
    Where slanderous words are spoken in a quarrel and in the heat of passion this fact should be considered by the jury in determining whether or not punitive damages should be allowed and in fixing their amount.

      •6. Effect of Signature to Verification of Pleading not Being Genuine.
    The fact that the signature of the plaintiff, attached to the verification of his petition, is not genuine, in order to constitute a valid objection to the petition, must be raised before trial, and this is true although the plaintiff on cross-examination states that the signature is not genuine.
    Error to the court of common pleas.
    Col. Joseph R. Bartlett and John B. Stahl, for defendant in error.
    Kinney, O’Farrell & Rimelspach, for plaintiff in error.
    The taking of the whole of the property by one' of the tenants in common is not larceny. 2 Bishop, New Cr. Law Secs. 7Q2, 793; 2 Wharton, Cr. Law Sec. 1809; Alíele v. Wright, 17 Ohio St. 238, 239; Davis v. Brown, 27 Ohio St. 326, 328.
    In cropping contracts, the title to the whole is in the tenant until division and delivery. Desty, Am. Cr. Law Sec. 145e; Sargent v. Courrier, 66 Ill. 245; Robinson v. Kruse, 29 Ark. 575.
    Words to be actionable must impute criminality. 1 Starkey, Slander 21; Hollingsworth v. Shaw, 19 Ohio St. 430, 433; Reinhardt v. Fasch-nacht, 2 Circ. Dec. 571 (4 R. 321) ; Alíele v. Wright, 17 Ohio St. 238; Davis v. Brown, 27 Ohio St. 326; Hamm v. Wikline, 26 Ohio St. 81; Melvin v. Weiant, 36 Ohio St. 184.
    Proof of special damages. Reinhardt v. Faschnacht, 2 Circ. Dec. 571 (4 R. 321) ; Reynolds v. Morris, 7 Ohio St. 310; Hollingsworth v. Shaw, 19 Ohio St. 430.
    Injury to feelings as an element of special damages. Alíele v. Wright, 17 Ohio St. 238, 241, 242; Davis v. Brown, 27 Ohio St. 328; Wilson v. Robbins, Wright 40; Melvin v. Weiant, 36 Ohio St. 184.
    Words imputing crime, relating to a transaction not criminal, and not intended to be understood as imputing crime, are not slanderous. Brown v. Myers, 40 Ohio St. 99; Reinhardt v. Faschnacht, 2 Circ. Dec. 571 (4 R. 321).
   HULL, J.

In this case which was an action in slander, the defendant in error recovered a judgment against the plaintiff in error for $200, in the court of common pleas, and this action is brought to reverse that judgment.

The plaintiff, Lejune, complained that the defendant called him a thief, and, to read from his petition, “the slanderous words were, ‘you (meaning plaintiff) damn thief, you stole six bushels of my apples (meaning then and thereby that this plaintiff was guilty of and did steal, take and carry away six bushels of apples),’ ” etc.

It is claimed that the verdict was against the weight of the evidence and that the court erred on the trial of the case, in the exclusion and admission of evidence, in the charge and in the refusal to charge, and in some other respects.

It appears that the trouble between Dr. Phillips, the defendant below, and Lejune, grew out of some transactions that they had, as landlord and tenant. Lejune was living on the doctor’s farm near Fremont, and working it “on shares.” There was on the farm an orchard where the apples grew that this trouble grew out of.

Plaintiff claims that on the day in question the doctor came out to the farm and used the words set up in the petition; called him a thief and charged him with stealing six bushels of apples. The defendant denies using the language, or making any charge of theft, but claims that they had some differences there on that day, in regard to the apples; that he, Phillips, was picking up some apples on the ground; that Lejune upbraided him for it, asking him what he was doing there, and that he told him that he, Lejune, had taken six bushels of apples and given them to a man by the name of Fry, and that he was about to take three bushels for a Mr. Hall, who was with him helping pick up the apples, and Dr. Phillips claims that that was all there was of it; that he made no charge of theft, but that it was simply a disagreement which grew out of the division of these apples. He claimed that Lejune had taken either six or three bushels to pay Fry for helping pick .apples, it being Lejune’s duty to pick the apples, and the doctor denied using the language plaintiff charged him with.

A number of exceptions were taken on the trial of the case. It will not be necessary to refer to them all.

After the trouble in the orchard, Dr. Phillips went to the house and out into the road, and at the house, at the gate leading into the road, some more talk occurred between him and Lejune, the plaintiff claiming the doctor said to him: “Then you did steal these apples. You know you did,” and that this was said in the presence of his wife.

At the conclusion of the testimony the defendant below asked the court to require the plaintiff to elect which statement of the defendant he would proceed upon. The court overruled this motion, but did say in the presence of the jury that there was only one thing complained of, and that' was the language set up in the petition, and that that was the only language that could be recovered upon, and said at another time to the jury, in the charge, that the language used at the gate, if any was used, could only be considered for the purpose of showing malice. We think there was no error in the court refusing to require the election to be made.

The plaintiff below was permitted to testify to the effect this language had upon his feelings; that it wounded his feelings and that he was. unable to sleep, and other effects he claimed the alleged slanderous language had upon him. This was objected to and exceptions taken. In a slander case injury to feelings may be considered by the jury — such injury as they would reasonably conclude a man suffered; such effect may be 'presumed —but plaintiff may go farther and testify and offer evidence, if he sees fit, as to the actual effect the language had upon him, and there was no error in the action of the court in admitting that testimony, nor was there any error in the court refusing to dismiss the case, when, upon cross-examination, the plaintiff looked at the signature attached to the verification of the petition and gave as his opinion that it was not his handwriting; that he did not sign it. He may have been confused at the time. At all events it was his case; he authorized the suit to be brought; no objection was made at the time the petition was filed and answer was filed, and we think no objection could be made upon the trial upon that ground.

A number of requests to charge the jury were asked by the defendant below, among them request No. 3, which was refused by the court, and it is claimed that this was error. This instruction or request for instruction was as follows:

“3. Gentlemen, I say to you as a -matter of law, that an action of slander cannot be maintained for words which impute a crime, where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was not criminal, and that they must have been so understood by the hearers.”

This request by the defendant below was in line with his defense, that whatever he said on that occasion was not said with any intent to charge Lejune with having committed a .crime, but that what defendant said was said under such circumstances that those who were present must have understood that it was not intended to charge Lejune with a crime.

As I have stated, the trouble arose in the orchard over these- apples which Lejune had raised on the farm that he had leased from Dr. Phillips, upon “the shares.” It would not be a crime, of course, for Lejune to take undivided crops. While it would constitute a civil cause of action, it would not be larceny as long as they owned'the property in common, he being a tenant upon the farm, and this charge that Lejune stole property from him might be understood as merely the taking of more than his share of the apples that had been divided up to that time, and not a charge of crime. And Dr. Phillips’ testimony and the witnesses that he called tended to support this claim.

There were present at the time of the transaction, besides the plaintiff and the defendant and a Mr. Hall, who had gone out to the farm with Dr. Phillips, a witness by the name of Stiffler, and a young son of Lejune, a boy about nine or ten years old, at the time this occurred. Lejune’s wife was at the house, and did not hear what occurred in the orchard. Dr. Phillips testified that he was picking up apples under the trees when Lejune came and asked him what he was doing, and that he, Dr. Phillips, said:

“You gave Fry six bushels of my apples” or “took six bushels of my apples for Fry, I am taking three for Mr. Hall.”

And Dr. Phillips testifies there had been some trouble before between them about some wheat; that Lejune had threatened to whip him, and that he, perhaps, had made some threats toward Lejune, and told him if he attacked him as he had on a prior occasion he might shoot him — might put a bullet through him.

It was apparent there was quite a quarrel — quite a violent quarrel — ■ between these two men on this occasion. The witness, Stiffler, who was called by Lejune, testifies upon examination in chief, when he was examined as a witness for plaintiff, that he did not hear the language complained of by plaintiff. He said he heard them quarreling about their crops, but what was said he was unable to state, and finally counsel stated that plaintiff was taken by surprise by the witness, and he was permitted to cross-examine the witness and put the question to him directly and in leading form whether he heard this language, and he then said that he did, but not till then.

So the issue was fairly raised here — squarely raised — as to what language was used upon this occasion; the doctor denying that he used the language with which he was charged; admitting that he did say something in regard to the apples, and saying that he had no intention of charging-plaintiff with theft. The doctor testified that immediately after he said whatever he did to Lejune, Lejune called upon those who were present and asked them if they heard the doctor charge him with stealing, and some of them said they did and some that they did not, and the doctor then said:

“I did not charge you-with stealing; I had no intention of charging you with stealing; what I said was that you took these apples.”

So the issue was presented to the jury whether Dr. Phillips used the language complained of and whether the language used was language which showed an intention to charge Lejune with a crime, or whether it was used under such circumstances that those present would or would not understand that he was being charged with a crime. If the language was used under such circumstances and in such a way that those who were present would have known that it was not intended to charge Lejune with a crime, it is not slander, for the injury and damage done by slanderous language is in charging a man in such a way that those who hear the words understand that he is being charged with a crime, or with some offense involving moral turpitude. If those who hear the language have no such understanding as that, and if the words are spoken under such circumstances that a man would naturally have no such understanding, no damage is done.

The Supreme Court say in Alfele v. Wright, 17 Ohio St. 238:

"Upon the question whether slanderous words are actionable in themselves, as charging the plaintiff with crime, the general rule of the common law is, that where the charge, if true, would subject the plaintiff to an indictment for a crime involving moral turpitude, or to an infamous punishment, the words are actionable per se; and otherwise not.
“One of two partners cannot be guilty of burglary or larceny in respect to a house or goods of which the ownership and possession are in both partners. An entry of such house, and carrying away of such goods by one of the partners, would not subject him to a criminal prosecution, either at common law or by statute. Therefore, words charging a partner with such conduct are not actionable, without specialvdamage.”

No special daznage was either alleged or claimed in this case. It is set up in the petition that plaintiff was a farmer, and that to be charged with being a dishonest man injured him, and that it was necessary that he should be of good repute to carry on his business, etc.; but it was not alleged in the petition that he had lost the lease of any farm, or lost any property, or any advantage on account of these words, and no special damage was proven or undertaken to be proven on the trial of the case, so that he would not be entitled to recover in this case on the ground of special damages, and, if at all, it must be on the ground that he was charged with a crime. Such a charge is actionable per se.

Under the testimony as it stands we think that there is a good deal of a question whether the doctor intended to charge plaintiff with a crime. It was certainly a question that should have been properly and fairly submitted to the jury. They were having a quarrel which grew out of the division of this crop of apples — a quarrel between landlord and tenant; there was trouble about the apples Lejune was raising “on shares.” It is admitted all around that there wa.s some talk about that. And whatever defendant said was said under such circumstances as made it a very proper question to leave to the jury,.whether there was any intention on the part of Dr. Phillips to charge Lejune with a ciime, even if he did use the words which Lejune claims he did.

There was no sufficient instruction to the jury in the general charge .along this line — upon this feature of the case — and it was an important question in the case:

Dr. Phillips having testified that he did say to Lejune, “You took six bushels of apples for Pry, and I am going to take three for Hall,” the jury might, possibly, without any instruction on that question, have thought that the statement of defendant was practically an admission that he charged Lejune with stealing, while, according to the doctor’s testimony, and the testimony of Hall, who was present, whatever the language was, these words were used in such a manner and under such circumstances as to show that he had no intention of charging Lejune with anything more than taking five or six bushels of these undivided apples — a portion of them — and thus entitling him, Phillips, to a like amount, and that he had no intention of charging him with theft.

We are of the opinion-that the instruction No. 3 asked by the defendant below should have been given. It is plain to us that it was pertinent to the case, and is the law as laid down by the Supreme Court of this state.

In the case of Brown v. Myers, 40 Ohio St. 99, the Supreme Court say in the syllabus:

“An action of slander cannot be maintained for words which impute a crime, where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was not criminal, and that they must have been so understood by the hearers.
“In such case it is error to exclude evidence offered by the defendant to show what the transaction was to which the words related.”

That being the law, the only question is whether the request was pertinent to the facts of this case, and we think that it was very pertinent, and that the jury should have been charged fully upon that question.

Whatever was said' on this occasion was said in a quarrel — in the . heat of passidn: there was no deliberate and premeditated charge of theft. Whatever was said grew out of the differences between these two men, in regard to this crop of apples. The circumstances under which the words were uttered; the place where the}- were uttered, and the fact that Lejune had, in fact, given six bushels of apples, or set apart six bushels of apples, for Fry, before this trouble occurred; the testimony of Mr. Hall, all go to corroborate Dr. Phillips’ claim as to this transaction.

According to the testimony, some of it, at least, Lejune had made an arrangement with Fry to give him six bushels out of eighteen, for picking them, and the apples were all there on the ground in sight of the parties: twelve bushels in one pile and six in another, which were to go to Fry.

However, as the plaintiff testifies to the use of this language; denies the claims of Dr. Phillips, and is corroborated, to some extent, by his son, but who was quite young, in fact, so young that he testified on the witness stand that he did not understand the nature of an oath; in view of this testimony, we do not hold, as a matter of law, that the judgment should be reversed and verdict set aside because against the weight of the evidence, but it was a question for the jury, under proper instruction from the court.

We think it was reversible error in the court to refuse to give this instruction to the jury, and that the charge was faulty and defective in not mentioning to the jury the facts and circumstances as claimed here by the defendant, as surrounding the speaking of the words,' whatever they were, and stating to the jury the law upon that question as laid down by the Supreme Court. That was a very important factor in this case, and we think the jury should have been fully instructed upon it.

We think that this is a case where the jury might well have been instructed more fully on the question of punitive damages. They were simply instructed that they might return punitive damages. It is true that this, to some extent, lies in the discretion of the jury, if the evidence warrants it. It may or may not warrant such damages in addition to compensatory. But there was evidence strongly tending to show that the words were uttered in passion, without any intention of injuring LeJ’une; and the jury should have been instructed that this should be taken into consideration by them on this question of punitive damages in determining whether or not any should be allowed, and generally in fixing the amount of the damages if they found for plaintiff.

We find this in Seaton v. Cordray, Wright 101:

“An action may be sustained for charging another with being a thief or with having stolen, but not for imputing a mere intention to steal, or with having an evil disposition.
“To make words imputing crime actionable, they must be such, as, if true, would subject the accused to infamous punishment.
“Slanderous words, uttered in heat and passion, or provoked by the plaintiff, entitle the plaintiff to merely nominal damages.”

’And the court said:

“An action may be sustained for charging another with being a thief, or with having stolen, but not for imputing a mere intention to steal, or with having an evil disposition. * * *
“If the words spoken.do impute crime, but were spoken in heat and passion, while the parties "were excited, and in contest, the damages should be merely nominal for the plaintiff.”

If whatever was said in the case at bar was said in a quarrel between these two men and in passion, if the jury found for the plaintiff, that should have been taken into consideration by them in fixing the amount of punitive damages and in determining whether any such damages should be allowed, and upon the question of damages generally this should be considered, and the jury should have been instructed fully upon that point by the court.

We think from the whole record in this case, that the ends of justice have not been reached by this verdict and judgment, and for the errors pointed out the judgment will be reversed, the verdict set aside and the case remanded for a new trial.


text:
    NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    June 20, 1903.]
    Parker, Hull and Haynes, JJ.
    Lake Shore & Michigan Southern Railway Co. v. William Callahan.
    1. Rule of Remote Negligence Does not Extend to Concurrent Negligence. 1
    The rule of the law of negligence, that the plaintiff may recover notwithstanding he negligently exposed himself to the danger that caused his injury, if the defendant failed to use ordinary cai'e to avoid injuring him after he became aware, - or by the use of ordinary care would have become aware, of the danger threatening the plaintiff, and he was injured thereby, does not extend to a case where the negligence of the plaintiff was concurrent with that of defendant.
    2. Concurrent Negligence Precludes Recovery.
    Where, upon the facts, as a matter of law, the plaintiff has been guilty of concurrent negligence, contributing directly to the injury of which he complains, he cannot recover, and a verdict in his favor will be set aside, notwithstanding there are special findings by the jury that servants of the defendant company could have discovered the perilous position in which he had placed himself, and that he had exercised ordinary care.
    3. Facts Constituting Contributory Negligence as Matter of Law.
    An employe of a railroad company, engaged in the work of repairing its tracks in its yards, who, in the course of his employment, is directed to perform a duty, and in performing it unnecessarily walks between the rails, down one of the tracks of the defendant company about seventy-five feet, upon which and behind him he has seen, when he started, a locomotive with its rear end toward him some two or three hundred feet away, and upon which the bell is ringing, and makes no effort to ascertain whether the locomotive is approaching, and is injured thereby, is guilty of concurrent negligence, as a matter of law, which will not be excused because he relied upon and failed to receive the customary warning from his foreman; and this is true although he testified l.e thought the engine was standing still.
    Error to the common pleas.
    E, D. Potter, for plaintiff.
    Brombach & Thatcher, for defendant,
   HULL, J.

This proceeding in error was brought to reverse the judgment of the court of common pleas. The defendant in error, who was the plaintiff below, brought his action against the railway company to recover damages for personal injuries, which he claims he sustained on January 21, 1901, on account of and through the negligence of the railway company. ITe was awarded a verdict of $1,500 by the general verdict of the jury; and there were special findings of the jury made in answer to interrogatories at the request of both plaintiff and defendant below.

A motion was made by the railway company, after verdict, for a judgment in its favor, notwithstanding the general verdict against it. This motion was overruled by the court below, and judgment entered against the railway company for the amount of the verdict ($1,500) ; and it was to reverse this judgment that the petition in error was filed in this court.

It is claimed that the plaintiff in error is entitled to a judgment in its favor in this court, upon the special findings of the jury, as well as a reversal of the judgment of the court below. And the only point urged here by the plaintiff in error is this one, that upon the special' findings of the jury, it was entitled to a judgment, notwithstanding the general verdict, and that it should have a judgment entered in its favor here.

The plaintiff, and when I say plaintiff, I mean the plaintiff below, William Callahan, was a section man in the employ of the railway company on the day of his injury, and was working under' the direction of one John Rabie, who was acting as foreman, nearly opposite the union depot in the city of Toledo — almost directly opposite the dining room, which is connected with the union station. Callahan and the other men in his gang were at work repairing the track at this point, a portion of the east bound main track, which lies outside of and to the south of the sheds under which the passenger trains ordinarily run'. They were at work there repairing the track, and in doing their work, it became necessary to have a wrench and bolt which were lying between the rails of this track, about seventy-five feet eastward of where they were at work, and Callahan was directed by Rabie, his foreman, to get this wrench and bolt, and he started eastward for that purpose.

Shortly before this, a passenger train had come in from Cleveland, which was due in Toledo at the station at 2 :10 p. m. The engine had been unhitched from the train for the purpose of taking it to the coal dock, or to the round house, and it had been run west about a quarter of a mile to what is known as the Broadway bridge, and was there switched and thrown upon this east bound main track where these men were at work, and from this point, near the Broadway bridge, was then backed eastward, starting about a quarter of a mile west of where Callahan was at work,.the track being clear and straight.

Callahan, when he started after the wrench and bolt, walked down the east bound main track between the rails; as he started to walk between the rails he looked west, he says, and saw this locomotive, which was there, with its rear end toward him; he says it was some two or three hundred feet distant, and he thought it was standing still. • Other witnesses place it as near as seventy-five or one hundred feet. He proceeded eastward along the east bound,main track, without looking further for the locomotive or making any further attempt to ascertain whether it was moving or not. When he reached the place where the wrench and bolt were, according to his testimony, he stooped over to pick them up, and just as-he was in the act of stooping, with his back toward the locomotive, the rear end of the locomotive struck him, and he was thrown under the rear of the tender and dragged or propelled about one hundred and forty-seven feet, and sustained injuries; three fingers of one hand were cut off and he was otherwise injured about his person.

He claims that he heard no signal, either by bell or whistle, and did not hear the locomotive approaching, and he says he thought the locomotive was standing still when he started down the track, and that he did not know that it would start. And it is further claimed by him that it had been the custom for the foreman of such a gang to warn the men by calling out upon the approach of a train; and that he supposed, if a train approached from the rear while he was going down the track, he would be given such warning. He claims further that no such warning was given by the foreman then in charge, or if one was given he did not hear it.

It is also claimed that a man should have been placed upon the rear of the engine to notify men upon the track. However, this is not especially relied upon. But the grounds of negligence generally set up in the petition are that no bell was rung on this locomotive, or whistle blown; that the foreman in charge of the men did not keep a lookout for approaching trains or locomotives, and did not warn Callahan as he walked d(own the track; and that the engineer and fireman upon the locomotive were .negligent in not keeping a proper lookout for men upon the track, and in not stopping so as to prevent injuring Callahan after they discovered he was upon the track, or might have discovered him by due care, the claim being that by the exercise of ordinary care, the engineer might have discovered Callahan upon the track in time to have stopped the locomotive and avoided injuring him.

The fireman and engineer both testified that they did not see Callahan upon the track. The testimony of the engineer is, and it seems to be uncontradicted, that it would not be possible for him to see a man on the track from the engine nearer than 135 or 140 feet from the tender, on account of the view being obstructed by portions of the locomotive. And it is not claimed here that either the fireman or the engineer saw Callahan upon the track; at least there is no evidence that they did. It is claimed,, however, that, by the exercise of ordinary care, they might have seen him. But it is not claimed that he was injured through any wanton or wilful act of the engineer or fireman, or any reckless act; but the claim of the plaintiff is based upon the alleged negligence on the part of the engineer and fireman in not seeing him and in not giving a signal, and the failure to give warning by the foreman, as has been stated.

Any extended review of the evidence is unnecessary, on account of the special findings of the jury. The court, at the request of the railway company, submitted to the jury four interrogatories, which were answered. They are as follows, with the answers:

“1. After engine 146 came out upon the cast bound main track and began to back easterly, did it stop so backing until after it struck Callahan?” Ans. “No.”
“2. Was the bell upon engine 146 ringing as it was backing east on the east bound main track as and when Callahan was struck?” Ans. “Yes.”
“3. Did Engineer Sawyer, whilst backing his engine on the east bound main track, and as and when Callahan was struck, exercise ordinary care in keeping a careful lookout in the direction in which his engine was backing?” Ans. “No.”
“4. Before Callahan started to walk east upon or at the side of the east bound main track could he, by the exercise of ordinary care, have observed this engine a short distance westerly of him, moving towards him upon the east bound main track?” Ans. “Yes.”
“6. After Callahan started to walk east upon dr at the side of the. east bound main track, did Rabie, the other section man, call out to him to ‘watch out’ in time and in such manner that by the exercise of ordinary care he would have heard the warning and avoided the.injury?” Ans. “No.”

And upon the request of the plaintiff below, two interrogatories were submitted to the jury, which were answered. The)'- are as follows:

“2. When Callahan started to walk east upon the track, did he exercise reasonable and ordinary care for his own safety up to the time the engine struck him, considering that it was customary to ring the bell of a coming engine and for the foreman over him to call out a warning of its approach?” Ans. “Yes.”
“4. Could the engineer of the engine, by exercising reasonable and ordinary care, have stopped the engine in- time to avoid injuring Callahan after he knew, or should have known, of Callahan’s danger by the exercise of ordinary care ?” Ans. “Yes.”

Counsel for the plaintiff in error claims that upon the answers to interrogatories numbered two and four, submitted by the railway company, the railway company is entitled to a judgment in its favor, notwithstanding the general verdict and also notwithstanding the answers to the other interrogatories submitted by both the plaintiff below and by the -defendant below.

It is claimed by the defendant in error, taking into consideration all the interrogatories which were answered by the jury, which might be said to constitute a special verdict, or that they are in the nature of a special verdict, that the judgment of the court below should be affirmed and its action in refusing to enter judgment in favor of the railroad company should be affirmed.

Defendant’s interrogatory No. 2, with the answer, has been read, but I will read it again:

“2. Was the bell upon engine 146 ringing, as- it was backing east on the east bound main track, as and when Callahan was struck?” Ans. “Yes.”

So, upon this special finding of the jury, which is sustained by the evidence in the case, the question as to whether the bell upon the locomotive was being rung, as the locomotive approached Callahan,.is settled and all doubt is removed, the jury finding specially that it was rung, and Callahan must be judged and his rights determined upon the hypothesis that the bell was in fact ringing when he started upon the track eastward and while he was walking upon the track and until he was struck by the locomotive.

Interrogatory No. 4 and the answer thereto I will read again, as this is the remaining one upon which the plaintiff in error relies.

“4. Before Callahan started to walk east upon or at the side of the east bound main track could he, by the exercise of ordinary care, have observed this engine a short distance westerly of him, moving towards him upon the east bound main track?” Ans. “Yes.”

This special finding; of the jury is sustained by the evidence, and it is established then that at the time Callahan started to walk eastward upon the track, he could, by the exercise of ordinary care, have observed this engine. In fact, he testified that he did see the engine when he started east upon the track, some two or three hundred feet westward of him, but he thought it was standing still. The finding of the jury, however, is, by the answer to interrogatory No. 4, “Yes,” to wit, that “he could, by the exercise of ordinary care, have observed this engine a short distance westerly of him, moving towards him upon the east bound main track.” We understand that to mean that the jury finds that by the exercise of ordinary care he could have observed that the engine was moving toward him upon the east bound main track when he started to walk easterly. If there is any question about that, we hold, as a matter of law, that when he saw the locomotive upon the east bound main track not more than two or three hundred feet distant from him when he. started, that it was his duty to look carefully enough to ascertain whether the locomotive was moving or standing still. When he turned his back upon this locomotive, there was imposed upon him, at least the same duty that is imposed upon the traveler who is about .to cross a railway track; that is, the duty of using his senses, by looking and listening to ascertain whether a train or a locomotive is approaching, and if the circumstances are such, as have been laid down by the Supreme Court of this state many times, that by looking and listening, and in the exercise of ordinary care, he-miglit have seen or heard the train, and he is injured, on account of not seeing or hearing it, he cannot recover, for the reason that he must be held, as a matter of law, to be guilty of con-/ tributary negligence; and we think it is not going beyond the law to say, that if a man sees a locomotive upon the track within two or three hundred feet of him, it is his duty, as a matter of law, to look carefully and ascertain whether the locomotive is moving or standing still.

Under this special finding of the jury and upon the admitted facts, it appears that when plaintiff turned eastward upon this track he saw this locomotive not more than two or three hundred feet away moving toward him, and, under finding No. 2 of the jury, that the bell upon the locomotive was ringing at the time.

It is claimed by the plaintiff in error that under this state of facts, Callahan was guilty, as a matter of law, of negligence contributing directly to his injury, at the time of his injury.

Upon the other hand, it is claimed by the defendant in error that notwithstanding these facts, the railway company was liable on account of the negligence of the engineer and fireman in not observing Callahan upon the track; and that they were bound to use ordinary care to observe him, and the jury having found that the engineer might have seen him by the exercise of ordinary care, that therefore the railroad company is liable, notwithstanding the contributory negligence of Callahan; that the case, as stated, comes within the doctrine of the “last chance,” as it is called by some authorities; that is, when a party, by his own negligence, has put himself in a place of danger, or is in a place of danger, the party charged with injuring him is liable, if, by the exercise of ordinary care, he might have avoided injuring him after he discovered the other party was so in a place of danger, and that the party would be liable under such circumstances, if he did not exercise ordinary care, although the party injured was negligent or had been negligent in getting himself into such a place of danger.

It has been decided by the Supreme Court of this state and by other courts that, although a party has placed himself in a dangerous position, by reason of his own negligence, that he may still recover against another person, who, having discovered his situation, does not use ordinary care to prevent injuring him, the doctrine being, that although a man, by his own negligence, has placed himself in such a position, he cannot be injured with impunity; that he is still entitled to the protection of the law; and any one who discovers him in such a situation' is bound to exercise ordinary care toward him. This doctrine was laid down by the Supreme Court of this state in the case of Railway Co. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674], where.a man, on an excursion train running along at night near Hamilton, Ohio, walked off the back end of the train and fell on the track, and on account of his injury was rendered unconscious. The train passed on without any effort to protect the man, or without stopping to pick him up, and failed to send any telegram from the next station to the following train which came along in about an hour, and ran over the man arid killed him. The Supreme Court held in that case that although, by his own negligence, deceased had placed himself in such a situation of peril, he was, notwithstanding that, entitled to have exercised toward him ordinary care for his protection. The court say in the first paragraph of the syllabus:

“1. It is a well settled rule of the law of negligence, .that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

And the court say in the opinion, on page 239, quoting from the case of Kerwhacker v. Railway Co. 3 Ohio St. 172:

“ ‘When the negligence of the defendant, in a suit upon such ground of action, is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury, the action is maintainable.’ And such is the well settled law. The negligence of the plaintiff’s intestate, in stepping or falling from the train while moving at a high rate of speed, was only the remote, and not the proximate cause of his death; the proximate cause being, the omission of the defendant to use proper care, after having become aware of the danger to which his negligent act had exposed him.”

But we think it is well settled that where the negligence of the party injured is continuous and is, in fact, continuing up to, during and at the very time of his injury, and if such negligence contributes directly to his injur)', lie cannot recover on account of negligence of another.

It is needless to cite authorities to sustain the general proposition that where one’s own negligence directly contributes to his injury, he cannot recover on account of the negligence of another, for the law will not undertake to apportion the degree of negligence as between the parties. As was said by the Supreme Court in the case of Schweinfurth v. Railway Co. 60 Ohio St. 215 [54 N. E. Rep. 89], in the second paragraph of the syllabus:

“In an action for negligence, it is not error to refuse an instruction, that the defendant cannot be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way, to the injury of which he complains. Unless the negligence of the person injured contributed directly to, or was a proximate cause of the injury, it does not preclude a recovery.”

And this proposition is discussed at length and authorities cited in the opinion. It was held there that the request to charge was defective for the reason that it did not contain the language that the negligence complained of must have contributed directly to the injury. But if the negligence of the person injured is concurrent with the alleged negligence of the party charged with doing the injury, we hold the law to be that he cannot recover, and we find no authority contrary to that doctrine.

In this case, we ■ think that the negligence of Callahan did contribute directly to his own injury, and it continued during all the time he walked upon the track, up, to, during and at the very time that he was injured.by the locomotive. He was bound by the law of this state and the general law of the land to ke’ep a lookout for this locomotive, which he knew was upon the track, and which we find he knew, or by the exercise of ordinary care, would have known, was approaching toward him. He therefore went upon the track and turned his back upon a locomotive approaching from behind him, with the bell ringing, and continued to walk upon the track without making any effort whatever to ascertain how near this locomotive was approaching to him. He says he relied upon the foreman to give a warning to him, if the locomotive approached near enough to threaten him with danger.

We are of the opinion that he could not rely upon that; that the fact that it may have been the custom for the foreman to give warning by calling out did not relieve him of his duty to exercise ordinary care in looking out for the locomotive, any more than it excuses a traveler upon the highway, when he approaches a crossing, from looking and listening, because a signal by bell or whistle is not given. That has been held many times by our Supreme Court. Seeing this locomotive approaching, he knew he was in a place of danger, when he was walking upon the track. He was not required to walk between the rails; he might have walked upon the other track, or at the side of the track. And there can be no question but that it was his duty to keep a constant and vigilant lookout for this locomotive approaching from behind him; and no other view would properly protect human life. Such a rule is necessary for the protection' of men, who are in the habit of going into dangerous places, and the law requires the exercise of such vigilance under such circumstances; and this is required also for the protection of the lives of the men operating the trains, and for the protection of passengers on the trains. The case of Baltimore & O. Ry. Co. v. Depew, 40 Ohio St. 121, was a case where a party had arranged with a railroad company for the transportation of himself, his family and his household goods to some western point. He was at or about the station when a train upon the railroad track started down the track; the train had been standing still. He relied upon the men operating the train giving him a warning by some signal, either by bell or whistle, when it started. They did not, and the train ran upon him and .injured him. He kept no lookout for the train, to see whether it w.as approaching him or not. And the Supreme Court held he could not recover. They say in the syllabus :

“Where a locomotive with cars attached is standing on a railroad track near a railroad station or other place where cars are frequently moved forward or backward, a person who goes upon the railroad track, seeing the locomotive and cars, and knowing that they would, within a few minutes, be moved toward him, and walks upon the track away from the train without keeping watch of its movements, where there was nothing to hinder him from seeing the movements, of the train in time to avoid danger, and when he could have gone in the same direction without walking on the track, is guilty of such negligence as will prevent his recovery for an injury caused by the carelessness or unskillfulness of the emplo)res of the railroad, not amounting to willfulness on their part.
“A person so walking upon a railroad track is not free from negligence which will prevent his recovery for an injury so caused if he omits to keep watch of the movements of the train, relying upon a rule or custom of the employes of the railroad to give a signal for the moving of the train.
“The expectation that such signal would be given does not relieve a person, in such situation, from constant watchfulness for his safety.”

The opinion in this case was delivered for the court by Judge Mc-Cauley. On page 127 of the opinion, the court say:

■ “The plaintiff knowing that the train would soon move backward, went upon the track-at a station a few yards in the rear of the train, and thence walked from the train, and did not take the care to look around or in any way keep a lookput for its movements until the backing cars struck him, and this, whén there was nothing to hinder him from turning around, and nothing to prevent him from j^lainlyr seeing the train if he had looked for it.”

As I have said, the foreman testifies that he did call out to Callahan to warn him of the approaching locomotive. Rabie testifies that he was at work upon the track, and after Callahan started to walk on the track, he saw the locomotive coming along; that he stepped off the track to let it pass by and that he called out to Callahan to “watch out” or “look out,” but Callahan testified that he did not hear him; and the finding of the jury in answer to one of the interrogatories submitted by the plaintiff below indicates that the}'’ found that either Rabie did not call out, or that he did not call out loud enough for Callahan to hear him.

. I have discussed this proposition upon the theory that Rabie did not give the warning. And we are of the opinion that this would not excuse plaintiff; that although it had been the custom to call out,' and although he .heard no warning given by the foreman, he could not, under the law, rely upon that to such an extent as to relieve him of the duty of keeping a lookout himself when he was walking down the track. As has been said, the testimony of Rabie is that he did in fact call out to him, hut there is a question as to whether he called out loud enough for Callahan to hear him. But the jury found that the bell was ringing, as the engine approached Callahan.

Upon the question as to whether a party can recover where his'negligence is concurrent with that of. the party charged, a decision of the circuit court of appeals of the United States, the opinion rendered by' Justice Day, now of the Supreme Court of the United States, is directly in point. It is the case of Gilbert v. Railway Co. 13 O. F. D. 475, 482. It is said in the second paragraph of the syllabus:

“The rule that where the.plaintiff, in an action for personal injuries, who places himself in a dangerous position, and from which an injury is likely to result, may recover therefor if the defendant, with full knowledge or such notice as is equivalent to knowledge thereof, fails to exercise reasonable care, by which the injury may have been avoided, has no application to a case where the injury is the result of the concurrent negligence of both parties.”

We think it is clear in the case at bar, if the railroad company was negligent, through the engineer and fireman, that this injury happened as the result of the concurrent negligence of both parties; that Callahan was himself guilty of negligence contributing directly to his injury, up to and at the very time that the injury occurred. He made no effort to ascertain whether this locomotive was approaching; he kept no lookout whatever while walking upon the track, or when he bent over to pick up the tools; and that therefore he was negligent during all of the time after he started to walk down the track until he was in fact injured.

After reviewing the authorities at length and citing some federal decisions, some of them decisions of the Supreme Court of the United States, Judge Day concludes:

“As we understand the rule to be deduced from these authorities, it amounts to this: That where the plaintiff, by his own negligence, has placed himself in a dangerous position, where injury is likely to result, the defendant, with knowledge, or such notice as is equivalent thereto, of the plaintiff’s danger, is bound to use reasonable care and diligence to avoid injuring the plaintiff; and where, by the exercise of such care, he could do so, fails to avoid the injury, this negligence introduces a new element into the case, and renders the defendant liable, because such negligence becomes the direct and proximate cause of the injury. We do not think the principle settled in these cases applies to a case where it clearly appears that the injury is the result of the concurrent negligence of the plaintiff and defendant. There is no averment in the petition that the engineer or fireman saw the decedent upon the track, or in a place of imminent danger, in time to have avoided the injury. Taking the allegations of the petition together, it seems to us to be a case of concurrent negligence on the part of the decedent and the railway company. Assuming it to be true that the defendant was’ guilty of the negligence charged in the petition, the deceased was guilty of negligence which directly contributed to the injury. In this view of the case, we do not think it is brought within the principle laid down In Baltimore & O. Ry. Co. v. Hellenthal, 88 Fed. Rep. 116 [31 C. C. A. 414; 60 U. S. App. 156], and similar cases. As the petition fails to disclose a cause of action in favor of the plaintiff, the demurrer was properly sustained, and the judgment of the court below is affirmed.”

This was a crossing case where a man was injured while crossing the railroad track. In a very recent case in the circuit court of Cuyahoga county, in the opinion delivered by Judge Caldwell, he cites and reviews many authorities and decisions of our own Supreme Court. This is the case of Cleveland, C. C. & St. L. Ry. Co. v. Gahan, 24 O. C. C. 277. The second paragraph of the syllabus is as follows:

“The rule that in case of injury by negligence, where the parties are mutually in fault, the plaintiff may recover if the- negligence of the defendant is the proximate cause of the injury while his own negligence is only the remote cause, consisting of some act or omission not ocgurring at the time of the injury, does not apply where the negligence of each party was the same in character, time and duration and equally active in causing the injury.”

On page 286 of the opinion, after reviewing- the authorities, Judge Caldwell says:

“The rule, as established by the courts, and in cases heretofore referred to, is in cases where the plaintiff has, at some time prior to the negligent act of the defendant, been guilty of negligence, and the rule is on the ground that the two acts of negligence did not co-operate; that the plaintiff’s negligence created only a condition or circumstance upon which the defendant’s negligence thereafter acted; and where that is true, the defendant’s negligence is the proximate cause, or, as expressed by some courts, the ‘last chance.’ In citing the foregoing authorities upon-this proposition, it has not been the purpose to establish when the rule applies, beyond this fact, that it applies only when the plaintiff’s negligence is prior to that of the defendant’s, and to show that the plaintiff’s negligence, in this case was not prior to, but cooperated with, that of the defendant.
“This rule does not apply where the plaintiff may have been negligent in not looking for danger from an approaching train upon the track, when it would have been possible for him to have stepped from the track, had he thus looked. Nor will it apply where he stands so close to the track without looking for approaching danger, that he is struck by a rapidly moving train. For, in these cases, his negligence, which cooperates at the same time with the defendant’s negligence, is his standing on the track without any effort to see approaching danger or without effort to move from his position, which is a continuing negligence, until he is struck. In such eases he cannot complain.”

In the case of Lake Shore & M. S. Ry. Co. v. Schade, 8 Circ. Dec. 316 (15 R. 424), which has been so often referred to and sometimes "criti-cised, and which was affirmed by the Supreme Court, without report, this principle of law laid down by Judge Caldwell in Cleveland, C. C. & St. L. Ry. Co. v. Gahan, supra; and laid down by the Supreme Court in the case of Railway Co. v. Kassen, 49 Ohio St. 230, was applied to the facts in that case, and the charge of the court to the jury was apparently based upon the theory that the negligence of the party injured might not have been concurrent with that of the other party. An abstract of the charge to the jury is found in the opinion, on pages 320, 321, as follows:

“ ‘One of the charges of negligence in this case is that while George Kirkhope, the deceased, was upon the track in a place of danger from the approaching engine, the engineer or persons in charge of this train could have seen him, and at least have checked the speed of the engine so as to permit him to pass on in safety. We say to you,' if by the exercise of ordinary care on the part of the engineer he could have seen the decedent, George Kirkhope, upon the track, and the dangerous position be was in, and by the exercise of ordinary care could have stopped his engine in time, or checked its speed so as to have permitted him to‘escape from this dangerous place, and saved his life, it was his duty to exercise that care’ * * *.
“ ‘Failure to do it would be negligence, which would permit recovery in this case, although George Kirkhope may have been guilty of negligence in going upon the track and being in that position. That is upon the rule that where a person sees another in a position of danger, no matter how such person came there, if by the exercise of ordinary care he could save such person from injury, it is his duty to do so, and the failure to exercise such care is negligence.’ ”

The question in this case was whether this proposition of law was applicable to the facts ih the case. Judge Hale dissented. He says, in his dissenting opinion, on page 324:

“The charge as given I have no sort of disposition or desire in any shape to criticise. Every dictate of humanity, every reason that could be suggested, would sustain the decision rendered in the case here cited in Railway Co. v. Kassen, 49 Ohio St. 230. It was clearly right. The only doubt that remains in my mind is whether the principles there announced should be applied to a case of this kind.”

We hold in the case at bar that the principles announced in the case of Railway Co. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674], are not applicable to the facts in this case; that here is a case of concurrent negligence, the negligence of Callahan being concurrent with that of the railway company, if the railway company was in fact guilty of negligence.

We do not think any case has been cited by counsel for defendant in error that conflicts with the views here expressed. • The case of Snyder v. Railway Co. 60 Ohio St. 487 [54 N. E. Rep. 475], is where a man was working upon the track, engaged at his work of unloading a car, a train came along without giving any signal and he was injured. In the case of Lake Shore & M. S. Ry. Co. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403], a man was engaged in work upon the track, bending over; a train came along, and without any signal, ran into him, and he was killed, and the Supreme Court held it was. a fair question for the jury as to whether there should have been a rule requiring the railway company to have a man there to give warning of approaching trains.

In an unreported case decided by the Supreme Court on June 9, 1903, Lake Shore & M. S. Ry. Co. v. Ham, 48 Bull. 545, men were at work upon the track at or near Pettisville, Fulton county, about four miles from Wauseon. The decedent went down the track to get some tools of some kind; he was walking on the track; a train was about a half a mile away when he started; when about 247 .feet from the point he started he was struck by the train and killed. It was claimed that he was not guilty of contributory negligence, because he had a right to rely upon a warning being given to him; that the foreman did not give him any warning; that he did not see the train when he started to walk upon the track. The Supreme Court held that the court of common pleas was justified in directing the jury to return a verdict in favor of the defendant and affirmed the judgment of that court and reversed this court.

■ It is unnecessary to discuss the answers of the jury to the interrogatories propounded on behalf of the plaintiff below. We hold that notwithstanding the fact that the jury found that the engineer and fireman could have discovered plaintiff by the exercise of ordinary care, he cannot recover on account of his own contributory negligence. We hold that the answer of the jury that Callahan exercised ordinary care in walking down this track is not sustained by the evidence, and that as a matter of law, he was guilty of contributory negligence in not keeping a lookout for the locomotive, as has been already stated.

We therefore hold, under these special findings of the jury, which in fact found Callahan, under the law, as we understand it, guilty of negligence which contributed directly to his own injury, negligence concurrent with that of the railway company, if it was guilty of negligence, that plaintiff cannot recover. And the court of-common pleas therefore erred jn overruling the motion of the railway company for a judgment upon the special findings of the jury.

The judgment of the court of common pleas must be reversed and-judgment entered here in favor of the railway company.

I will say further that we. are of the opinion that the finding of the jury that the engineer could have discovered Callahan, by the exercise of ordinary care, is not sustained by the evidence. The evidence does not establish the fact that the engineer or fireman were negligent. There is no evidence that either one of them saw Callahan. The evidence is that the engineer could not have seen Callahan when he was within 135 or 140 feet of the engine. Men were at work upon these tracks all the time, repairing the track; they remained on the track until the train was just a little way off — very near to them; and the fact that the section men were upon the track and that Callahan was ahead of the locomotive was no notice to the engineer that he would remain upon the track until the locomotive struck him; The testimony of Rabie shows that he remained upon this track, although he saw this locomotive coming, he remained at work upon the track until it was very close to him, when he stepped off and let it pass by.

In view of these facts; in view of the situation and the known custom for the men to remain upon the tracks where they were at work until the locomotive was very close to them, and the fact that there is no evidence that either the fireman or engineer saw Callahan walking down the track, we are of the opinion that this finding of the jury, in answer to interrogatory No. 4 submitted by the plaintiff below, is not sustained by the evidence ; that is, the affirmative answer to this question, “Could the engineer of the engine, by exercising reasonable and ordinary care, have stopped the engine in time to avoid injuring Calahan after he knew, or should have known 'of Callahan’s danger, by the exercise of ordinary care?” The testimony is that both the engineer and fireman were looking out of the cab window and neither saw him.

But aside from the question of negligence on the part of the railway company, we hold, for the reasons stated, that judgment should be entered upon the special findings of the jury in favor of the railway company in this court, and the judgment of the court of common pleas reversed.