author: GIFFEN, J.

text:
    CONSTITUTIONAL LAW — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen, Jelke and Swing, JJ.
    David Bauer v. James Casey.
    ‘Ordinance Prohibiting Conveyance Through Streets of Condemned Food, Etc., Void, When.
    A municipal ordinance which provides that “the- word ‘garbage’ shall be held to include all refuse of animal and vegetable matter which had been used for food for man, and all refuse animal and vegetable matter which was intended to be so used, and includes condemned food;” that no person other than the city contractor or his agents shall convey through the streets of the city any garbage, dead animals and fish; and that no person shall place any refuse animal and vegetable matter upon any private property whether owned by such person or not contravenes the fourteenth amendment of the constitution of .the United States, and is ' void as to such provisions.
    Rulison & Heintz, for plaintiff.
    Conner & Walker and Scott Holmes, for defendant.
   GIFFEN, J.

The original petition in this case was an application in the court of ’insolvency for a writ of habeas corpus, the plaintiff in error having been convicted under an ordinance of the city of Cincinnati, and it being alleged as a ground for the issuance of the writ that the ordinance contravened the fourteenth amendment of the constitution of the United States and was therefore void. The court held the ordinance was valid and remanded the prisoner to the custody of the chief of police and that judgment was affirmed by the common pleas court. By this proceeding it is sought to reverse the judgment of the common pleas. The ordi■nance under which the conviction was held provides “that no other person or party except the city contractor or its agents shall carry, convey, or transport through the streets, alleys, or public places of the city of •Cincinnati, any garbage, dead animals, fish and refuse animal' and vegetable matter found within the city limits.”

Section 2 of the ordinance provides that “the word 'garbage’ shall be held to include all refuse of animal and vegetable matter which had been used for food for man, and all refuse animal and vegetable matter which was intended to be so used, and includes condemned food.”

The affidavit charges that the plaintiff in error “did unlawfully con■vey through the streets of the said city of Cincinnati, to wit, Elm street, Plum street and George street, certain garbage; he, the said David Bauer, ■not being then and there the city contractor for the collection and removal of such garbage, nor the agent of said contractor.”

The first two clauses of Sec. 2 may perhaps be limited to such animal and vegetable matter as the owner himself had refused and abandoned. It certainly ’ means that much and perhaps more. When, therefore, the board of legislation added the words “and includes condemned food,” they intended to include in the definition of garbage food other than that which the owner himself had abandoned, and that the meaning of such word was food that had been pronounced unfit for use by official authority. The word “condemned” is an apt and appropriate word to express that idea. One of the chief definitions of the word “condemned” given in the standard dictionary is “to pronounce unfit for use, commonly by official action, as the health officer condemned spoiled meat.”' And, besides, in Sec. 4277 Rev. Stat., it is provided that an inspector of butter, lard, pork, beef, fish and other products may fie appointed by the probate judge of the county, and under Sec. 4323 Rev. Stat., it is provided that “When the inspector condemns any of the articles in this chapter enumerated, he shall forthwith, on demand, deliver to the owner thereof, or his agent, a certificate, distinctly setting forth a time, place, and cause of such condemnation, and when any of such .articles have been inspected and declared of good quality and merchantable, he shall, on demand as aforesaid, deliver a certificate thereof, for the benefit of the owner thereof.”

Nor is there any provision in this chapter for a forfeiture of the articles inspected except Sec. 4322 Rev. Stat., which provides for the forfeiture of one-half the contents of any hogshead, cask, box, or barrel of meat, butter, lard or any other packed article, the tare of which is under-marked. Although condemned by the inspector, it still remains the property of the owner, and has a commercial value for purposes other than food; and being still the property of the owner, he has the right to make such disposition of it as he may see fit, provided it does not affect the-public health or welfare.

A quarter of beef may be condemned as food by the inspector and so-branded according to the provision of the statute, and yet have a value-for certain purposes to which the owner is entitled to apply it, and if disposed of within a reasonable time, can have no effect upon the health, of the community.

The case relied on by the defendant in error, of State v. Orr, 68 Conn. 110 [35 Atl. Rep. 770; 34 L. R. A. 279] is unlike this case in that the definition of garbage and offal, under the ordinance there considered, was declared to be only “such refuse matter as accumulated in the preparation of food for -the table,” and in the second paragraph of the syllabus “that the term 'refuse matter’ as employed in the ordinance, embraced only such matter as was either in fact noxious, or as had been refused and abandoned by its owner as worthless.”

If the term “garbage” in the case before us was defined as in that case, then we could not hold otherwise than did the court in that case,, and we would be inclined to go further and adopt the last proposition of the syllabus in that case, to wit: “That any occupation comes within; the range of the police power, which is such as to be naturally liable to create a nuisance unless subjected to special regulation; whether it be so conducted as in fact to create a nuisance or not.”

“Condemned food” which has not been abandoned by the owner and has a commercial value is not liable to create a nuisance, as its verv value is an inducement to the owner to apply it to such uses as will develop its real value from which he may realize.

The provision that no person may convey through the streets of the city any dead animals or fish without regard to the cause of death or the-purpose for which they are intended to be used is open to. the same objection.

If we eliminate the definition of garbage contained1 in Sec. 2 of the-ordinance and that part of Sec. 3 pertaining to removal of dead animals and fish, and that joart of Sec. 4 which prohibits any person from placing refuse animal and vegetable matter upon any private property whether owned by such person or not, we would destroy the substance of the ordinance, and cannot say that the board of legislation, with these parts-eliminated, would have passed the ordinance; in fact, we think it most probable that it would not have passed it.

We conclude, therefore, that the ordinance under which the plaintiff in error was convicted is void and of no effect, the judgment of the court of common pleas be reversed, and the prisoner be discharged.

Jelke and Swing, JJ., concur.


source: Caselaw Access Project

author: PARKER, P. J.

license: Public Domain

text:
    WARRANTY — FRAUD—SURETYSHIP—ELECTION OF REMEDIES.
    [Lucas (6th) Circuit Court,
    June 25, 1904.]
    Parker, Hull and' Haynes, JJ.
    Isaac Harter Co. v. Charles H. Pearson et al.
    1. Representation Made in Good Faith Without Knowledge oe Facts, Constitutes A WARRANTY.
    A material representation made in good faith by one who is unacquainted with the facts, is in the nature of a warranty, and must he made good to one who has rightfully acted upon it to his injury without knowledge of its falsity.
    2. Owner oe Goods Fraudulently Taken From His Possession Has Election oe Remedies, etc.
    Where goods have been fraudulently obtained from the possession of the owner, the liability of the wrongdoer is not only that which arises out of an “indebtedness,” but the owner may, at his election, pursue either of the following remedies: Proceed in tort to recover damages for the trespass and asportation; waive the tort, and sue for the value of the goods upon the fiction that the property was sold; or replevin the property, in ease it can be reached. The right of election is in the owner only, and the wrongdoer, or one in privity with him, cannot treat the transaction as a sale, or as an “indebtedness,” to the prejudice of the former.
    3. Liability Arising Out oe Fraud not an Indebtedness Without Election of Party Defrauded — Suretyship.
    The liability arising out of a fraudulent conversion of property is not a mere indebtedness, unless the person defrauded . elects to treat it as such. Hence, where the person defrauded obtains the note of the person defrauding him for an actual indebtedness, and one signs as surety upon the representation of the payee, made in good faith, that the note covers the whole of the indebtedness of the maker, the fact of an additional liability growing out of a prior fraudulent transaction, not then known to the payee, affords no ground of defense against the note to such surety.
    4. Aeter Satisfaction of Judgment in Assumpsit, Action for Tort Will not Lie.
    After the satisfaction of a judgment in assumpsit, the owner of property which was fraudulently obtained from him cannot maintain an action in tort against the wrongdoer. Whether he could proceed in tort, after judgment hut before satisfaction in assumpsit, quaere.

    Error to Lucas common pleas court.
    E. W. Tolerton, for plaintiff in error.
    Swayne, Hayes & Tyler, for defendant in error.
   PARKER, P. J.

The action in tbe court below was by the Isaac Harter Co. against Charles H. Pearson and Wilbur C. Brown upon a promissory note given in New York, upon July 9, 1898, but dated July 1, 1898, for $1,500, payable six months after date, to the order of C.,H. Pearson, signed by C. H. Pearson and W. C. Brown, and endorsed by Pearson to the Isaac Harter Co. In the court below Pearson did not answer, so that judgment went against him by default. Brown answered that the debt on account of which this note was given was the debt of Pearson; that he, Brown, was surety for Pearson, and he set forth in his amended answer various grounds of defense affecting and accruing to him as surety, but all these various defenses- excepting one were eliminated before the case came to trial to the jury. ■ The only defense remaining, and that upon which the case was submitted to the jury, was, that at the time this note was given Mr. Day, a representative of the Isaac Plarter Co., on behalf of the company represented to Mr. Brown, in order to induce him to become surety for Pearson, that the whole indebtedness of Pearson to the company was about $4,500, whereas, it is said the indebtedness of Pearson at that time amounted to more than $10,000. Brown says that he was ignorant of this fact, and that if he had known of this large indebtedness he would not have signed as surety. If what he says is true, of course, by the law of the land, he would be discharged from liability. These averments were denied by the Isaac Harter Co. The cause was submitted to a jury, which found in favor of Brown.

The Isaac Harter Co., as plaintiff in error, insists that this finding and the judgment based upon it is wrong; that the court erred in its charge to the juryupon the law of the case; and that the verdict is contrary to the weight of the evidence.

It appears from the record'that the Isaac Harte r Co. was a large institution engaged in the milling business in Fostoria, Ohio; that Mr. Pearson, for some time prior to July 9, 1898, and for a short time after-wards, was the selling agent of the Isaac Harter Co. in the city of New York — that is, he was their representative there; he was their agent and representative in the sense that he was a commission merchant, and was the only merchant or firm authorized by the Isaac Harter Co. to sell their products in that city. He was not in their employ upon a salary, but he sold their goods as a commission merchant. He purchased the product from them, and his compensation arose from his commission. His depo*-sition appears in the record, and in that he testifies upon this subject, agreeing with the testimony on behalf of the plaintiff.

He testified in part as follows:

“Q. What, if any, business connection did you have with this company in the year 1898? A. I represented them in. handling their produce here for the sale of flour for local and export trade.
‘ ‘ Q. What was the nature of the business you were transacting for the company at that time? A. Buying flour from them.
“Q. You were selling flour for that eomphny at that time? A. I was.
“Q. Upon what basis,, commission or salary? A. Commission.”

And further along in his deposition he repeats that he was buying the flour from them. It appears that the transactions between the Isaac Harter Co. and Pearson were carried on by about the following method: Pearson would signify to the Isaac Harter Co. what flour he desired at a given time. They would forward the flour to New York. They would •consign it to themselves, and upon the bill of lading it would be stated in "this form: “Consigned to the Isaac Harter Co.; notify C. H. Pearson.” These bills of lading were attached to drafts upon C. H. Pearson for the amount of the flour in each instance of shipment; that is to say, for the price of the flour consigned. They would draw upon Pearson through a certain bank in New York, the name of which I do not now recall, and attach the bill of lading to the draft. .

It appears very clear from this record that Pearson was not authorized and had no right to obtain possession of the flour that was shipped to New York until he had paid these drafts, and become possessed of the bill of lading, upon presentation whereof to the railroad •company the flour would be delivered to him. But by some arrangement with an officer or employe of the railroad company — the West Shore Co. I believe it was — Pearson had, prior to July 9, 1898, obtained possession of a large amount of this flour without paying the drafts. I may say, by the way, that subsequently on account of this the Isaac Harter Co. presented its claim to the railroad company for having delivered the Hour to Pearson without authority, and it is said (though I am not sure -that it appears in this record, but it is said and it is not contradicted), that they collected from the railroad company without any trouble the ■amount of the value of the flour which it had delivered to Pearson without authority.

Upon July 9, 1898, Day appeared in New York on behalf of the Isaac Harter Co. to effect a settlement with Pearson of an unsettled open 'account amounting to about $2,500, and the readjustment of some indebtedness of Pearson’s upon notes, amounting to $2,000, the sum of the two being about $4,500. It appears from the testimony that Day was not .aware, and it does not appear from the testimony that any of the company were aware at that time that Pearson had obtained possession of this flour without payment of the drafts. The company knew that the drafts had not been paid, but, as the record shows, they supposed the drafts and the bills of lading were still in the bank, and that consequently the flour was still with the railroad company. Day called upon Mr. Pearson and asked him to.adjust these two claims, one for $2,500 and the other for $2,000. At the instance of Pearson they called upon Brown, Pearson apparently expecting that Brown would give him some assistance about settling these matters. Mr. Day said to Brown that the indebtedness of Pearson to the Isaac Harter Co. at that time amounted to $4,500. It appears that as a matter of fact Pearson had at that time wrongfully obtained possession of flour amounting to something over $8,000. Brown contended in the court below, and contends; here, that because of this state of facts with respect to the flour obtained by Pearson, the indebtedness of Pearson to the Isaac Harter Co., instead of being $4,500, was as much more as the value of this flour, to wit, something over $8,000 more. He claims, in other words, that Pearson was indebted to the Isaac Harter Co. over $12,000 instead of only $4,500, and that because of this false representation he should be discharged.

There was not much controversy over these facts. On behalf of the defendant in error it is contended that there were some circumstances in the case tending to show that the Isaac Harter Co. at the time knew of this wrong that had been perpetrated by Pearson, and of this liability of Pearson to them on account of the flour which he had unlawfully obtained.

If the company knew it, it might be inferred from what Mr. Day said that there was some false suggestion in his representation that the whole indebtedness was $4,500; or that there was some suppression of the truth; that the full literal truth was not told, as it should have been, to Brown; but we are called upon to sustain the verdict upon the theory that the Isaac Harter Co. did not know at the time this note was taken that they had been defrauded or wronged by Pearson.

■After the note was given, perhaps in the afternoon of the same day, Mr. Day became aware of these facts by investigation; but what he after-wards learned of course could not affect the rights of the parties as they became fixed by the transaction at an earlier period upon the ninth of July,

With respect to representations of this character, the' court charged the jury as follows:

‘ ‘ The question, therefore, which- you must decide from the evidence, is whether the plaintiff through Mr. Day falsely represented to the defendant that the indebtedness of Pearson to the plaintiff was only about $4,500, and if such representation was false, whether it was material, .and whether Brown had the right to rely upon it, and was actually induced by it to sign the note. ’ ’

And again:

“If you find that the representation made by Day as to Pearson’s indebtedness was untrue, it is not necessary for the defendant to prove ■that the plaintiff or Day knew that the representation was untrue. If in fact the statement was false, even although honestly made, and if it was material, and Brown had a right to rely upon it, and was induced by it to sign the note, then a good defense to the note is shown, and the plaintiff cannot recover upon the note. ’ ’

That, we think, under the authorities, correctly states the law. Such ■a representation, where the party making the representation is not acquainted with the facts, and where it turns out that his representation is untrue, though he made it in good faith, is in the nature of a warranty. It is not deceit, it is not fraud, in the sense that one has falsely deceived another, but it stands upon the doctrine of warranty: he must make good that which he represents to be true.

But the plaintiff in error insists that what Day represented to Brown ■upon this occasion was in fact true; that the whole indebtedness of Pearson was $4,500; that this liability of Pearson to the Isaac Harter Co. on ■account of the fraud which he had perpetrated upon them and perhaps upon the railnoad company, was not in the nature' of an indebtedness. And the case here seems to turn upon the question whether the liability ■of Pearson growing out of his fraudulent transaction was of the nature of an indebtedness, to the Isaac Harter Co. With respect to that the ■court charged the jury as follows:

“It is admitted here upon? all hands that the statement or representation made by Mr. Day to Mr. Brown on July 9, 1898, before the note was signed, was that the indebtedness of Pearson to the plaintiff was at that time the sum of about $4,500. The first question, then, is, was that statement false or untrue? In other words, was Pearson at that time indebted to the plaintiff in an amount largely or materially in excess of $4,500 ? Under the evidence in this case, the answer to that question de-pénds largely upon what you find to be the transactions between Pearson and the plaintiff prior to July 9, which related to the shipment of flour by the plaintiff to New York and the obtaining possession of the flour by Pearson'without paying the drafts drawn on him by the plaintiff. And upon that.subject I say to you this: if before July 9, 1898, Pearson obtained possession of the flour which had been shipped by the plaintiff to New York without paying the drafts drawn on him by the plaintiff, he-then became indebted to the plaintiff for the amount of such drafts, and' if this indebtedness existed upon July 9, . and if the indebtedness of Pearson to the plaintiff upon that day, including the amount of the indebtedness , upon the drafts, exceeded to any material! extent the sum of, $4,500, then the representation that the debt was only $4,500 was untrue or false. ’ ’

That is stated by the court without reference to the question whether-Mr. Day or the Isaac Harter Co. was aware of this liability on account of the flour unlawfully obtained. In other words, the court charges-that this liability was an indebtedness, at that time, of Pearson to the-Isaac Harter Co. This seems to have left very little for the jury to do.

That this representation would be material cannot be questioned. The difference between $4,500 and the real indebtedness, as the court construes this claim, was so great as to make it clearly material. Mr. Brown testifies that if he had known of this liability he would not have-signed.

Now, was this an indebtedness at this time? Clearly there was a liability of Pearson to the Isaac Harter Co. But the transaction was such as that Pearson was liable to the Isaac Harter Co. for a tort that he had committed in unlawfully obtaining possession of and converted their property. The law gave to the Isaac- Harter Co. a choice of remedies. They could proceed on account of the tort to recover damages for the trespass and asportation; or they might, if they could come at the property, recover it by replevin; or they might, if they chose to do so, waive the tort and sue for the value; but this right to waive the tort and sue for the value, proceeding upon the fiction that Pearson had purchased the property from them and*had promised to pay for it, was a right of the Isaac Harter Co.; it was not the right of Pearson. So far as Pearson was concerned, the Isaac Harter Co. might insist on proceeding on account of tort. Certain consequences would follow from this election to proceed upon indebitatis assumpsit; for if the Isaac Harter Co. should proceed in that way upon that election, it is probable that under the law,, it could not thereafter proceed on account of tort.

There is some difference in the authorities on this proposition, some holding that the right to proceed on account of tort is not taken away until the judgment obtained in the action of assumpsit has been satisfied; but certainly after satisfaction of the judgment in assumpsit the right to pro-’ ceed on account of tort is at an end. But this was a right or election lodged in the Isaac Harter Co. Pearson had no right to elect to treat tbis as an indebtedness as npon a contract. How, then, can the courts at the instance of Brown, treat this as in the nature of an indebtedness? It was the right of the Harter Co. alone to so elect. Clearly, under this record, they had not elected to treat this as a contractual obligation. They could not so elect until they had become aware of the facts. We are satisfied from this record that they did not become aware of-the facts until after the note in this case had been given. According to our view of the results of the transaction at the time this note was given, the Isaac Harter Co. still owned this flour; and owning the flour, it could not have a claim for its value based upon its sale to Pearson. Such claim could not arise until, with knowledge of the facts the company had elected to waive the tort and regard the transaction as a sale.

' Had they proceeded to enforce such claim, they must have proceeded upon the theory and upon the fiction that Pearson had purchased the flour, and had promised to pay for it. This is one of the fictions of the law that appears still to obtain, notwithstanding our changes in the law of procedure. It has become a part of the substantive law, founded upon the policy of the law. In an action of assumpsit upon this pretended contract, upon it being shown that he had obtained this flour and converted it, Pearson would not be permitted to dispute the averment that he had promised to pay for it; and it is only by virtue of that fiction, and by virtue of the fact that he would not be permitted to dispute that allegation, that the action of .assumpsit upon this transaction could be maintained.

Now, as I have said, the representation of Day- to Brown was, that the indebtedness of Pearson at that time was $4,500, and no more. As Pearson puts it in his deposition, Day said to Brown that Pearson was then owing the Isaac Harter Co. $4,500. It appears that in connection with that statement Day stated to Brown the items of that indebtedness —the $2,000 on the note and the $2,500 item on the account. That representation, having been made in entire good faith, with no purpose to conceal facts which ought to have been made known to Brown, the language of Mr. Day should not be extended beyond its natural and legitimate meaning. If he had known the other facts, and it could be fairly found and held that he was guilty of a suppression of some matter that he should have stated, perhaps it would be competent for the jury to enlarge the meaning and significance of the terms that he used; but having used the language in good faith, and its import and effect standing rather upon the doctrine of warranty than misrep-reservation or deceit, tbe language should be given its natural meaning, and should not be enlarged or extended beyond that. And giving it that construction, we hold 'that the statement was true and correct; that the indebtedness of Pearson at that time was $4,500 and no more; and we hold, therefore, that the court of common pleas erred in charging the jury to the effect that this liability amounted at the time to an indebtedness ; and on account of this error the judgment of the court of common pleas will.be reversed; and,.as I have indicated, there being a claim that there is some evidence tending to show that the company knew of this state of facts, so that the verdict may be sustainable on that theory, we go further, and hold that the verdict is against the weight of the evidence.

Reversed and remanded.

Hull and Haynes, JJ., concur.


author: HALE, J.

text:
    RAILROADS — NEGLIGENCE—TRIAL—ERROR.
    [Huron (6th) Circuit Court,
    October Term, 1904.]
    Parker, Hale and Marvin, JJ.
    Hale and Marvin, JJ., of Eighth Circuit, sitting in place of Hull and Haynes, JJ..
    Edward L. Green v. New York, C. & St. L. Ry.
    1. Duty. Imposed Upon Railroads to Euenish Reasonably Safe Place fob Employes to Wobk.
    A duty is imposed upon a railroad company to provide a reasonably safe place for its employes while engaged in the performance of their duties, or at least to exercise reasonable care to that end.
    2. Employe Bound to Know Dangers When Facts Simple and Conditions not Complex, etc.
    When the facts are simple and the conditions not complex, and the circumstances such as to be easily comprehended, one who knows the facts, conditions and circumstances, is bound and conclusively presumed to know' the dangers resulting therefrom. Hence, a charge to the jury, that if they find there was no rule of the railway company requiring the giving of notice to section men of the approach of trains while they were at work upon the track, and that decedent knew there was no such rule, and continued in the service of the company as section hand without complaint or objection, he assumed the risk incident to such failure to provide such rule, is not defective in that it neither expressly embodies the element that decedent did not know the dangers incident to the lack of such rule, nor in that it does not also, .expressly allege that decedent had knowledge that the absence of such rule created danger.
    8. Rule Stated as to Bueden of Peoof in Case of Contributory Negligence.
    Where the evidence offered by an administrator plaintiff does not disclose any want of ordinary care on the part of his decedent, the burden of proof is on defendant to show by a preponderance of the evidence that decedent contributed directly to his death. But where the evidence in support of the administrator’s cause of action raises the presumption of decedent’s contributory negligence, the burden rests upon him to remove the presumption by a like preponderance of evidence.
    4. Evidence as to Plaintiff’s Location Before Time of Accident not Competent, When.
    Where the nature of a section man’s work is such as to require an almost constant change of position, the fact that he was in a certain position some ten or fifteen minutes before he was struck and injured by a train, is not conclusive that he was in the same position at the time he was struck; and where it is also clear that he could not have gotten himself into any position where, in the exercise of ordinary care, it was not his duty to have observed the approach of the train, the exclusion of evidence as to his position is not prejudicial.
    5. Presumption of Negligence Arises From Lack of Obdinaby Cabe.
    Where the evidence shows that if plaintiff, in the exercise of ordinary care by looking, would 'have seen the approach of the train, or by listening, would have heard it, a presumption of negligence arises on his part which he must either rebut or fail in his case.
    Error.

      Jesse Vickery, for plaintiff in error.
    C. P. &. L. W. Wickham and John H. Clark, for defendant in error.
   HALE, J.

Edward Green, the decedent, on June 8, 1901, was employed by the defendant railroad company, as a section hand and had been so employed, for about a year and a half. On the day named, he was at work repairing the track at Bellevue, or leveling up the roadbed which had been disturbed by the renewal of the track. 'While so at work, a train passing upon the-track between the rails of which he stood, ran him down and killed him. This action is prosecuted by his son who was appointed administrator, as authorized by statute, to obtain compensation from the railroad company' for wrongfully causing the death of the decedent.

The negligence.charged, in substance is, that the company failed to» provide any rule or regulation for the government of its employes to-insure their safety while in the performance of their duties; that the engineer in charge of the engine that run Green down, failed to give any warning of the approach of the engine either by bell or whistle; and that the company was further in fault by not providing some means by which he could have been warned of the approach of the train, either, by his boss, or some other employe of the company. This last ground of negligence is not very distinctly stated in the petition but we give the-plaintiff the benefit of such allegation.

The issues were made upon these allegations of the petition, by a general genial, except the admission of certain formal averments, and charging contributory negligence on the part of the decedent such as should defeat a recovery.

Trial was had, a verdict rendered, under the charge of the court, in favor of the defendant, and, after the overruling of the motion for a. new trial, judgment was rendered upon the verdict.

Several errors are assigned which we will briefly notice. First, it is. said that the verdict was not sustained by sufficient evidence and therefore-the motion for a new trial should have been granted instead of overruled.

Considering the nature of the employment of this decedent, his work upon'the tracks of the railroad company, — always dangerous, — where-many trains were passing back and forth, and knowing, that no provision had been made by the company, either by rule or otherwise, to insure his-safety, it was incumbent upon him to take all reasonable care himself to escape injury from passing trains. He had no ground whatever'for relying upon being taken care of by the company other than what was done,, except to expect the engineer upon the engine to give the accustomed signals. But without going into a discussion of the facts, we are satisfied that the verdict was the only one proper to have been rendered in the case. However the facts of the case were such as to render it entirely proper that the issues should be submitted to the jury and a verdict had, before, the court should attempt to deal with the facts. If the case was not properly submitted to the jury under the correct rules of law, then the-verdict should be set aside and the plaintiff given an opportunity to have-the case passed upon by a jury under the proper rules of law; so we have-to examine the errors of law that are claimed, to have occurred at the trial..

The proposition discussed at considerable length by the attorney for the plaintiff, would be adopted by this court without discussion, and that' is, “It is the duty of a railway company to provide a reasonably safe place-for its employes, in the performance of their duties, or at least to ex.-ercise reasonable care to that end.”

Adopting that rule which is as broad as claimed by the plaintiffs attorney, we need not refer to the various cases to which reference has been made.

It is said that the court erred on the trial of the case, in giving to the jury certain requests that were made by the defendant. We refer to request numbered 4 which reads:

“If the jury find that there was no rule of the defendant requiring the section boss to give a notice to the men under his direction of the approach of the train while they were upon the track, and also find that the decedent knew that there was no such rule, and continued in the service of the defendant as section man without complaint or objection, he assumed the risk incident to such failure to provide such rule and the plaintiff cannot recover in this case on the ground of the failure to provide such rule.”

The objection made to this request is that it does not embody in it the element that the plaintiff not only knew that there was no rule of the kind referred to, but also knew of the dangers incident to the lack of such rule. It is claimed that the request is faulty in that it alleges only the knowledge of the plaintiff of the fact that there was no rule, without alleging the knowledge of the plaintiff- that the absence of such rule created a danger.

As we understand the rule to be in this state, where the facts are simple and the conditions not complex, and the circumstances such as to be easily comprehended, one who knows the conditions, and the facts and circumstances, is bound and conclusively presumed to know the dangers resulting from such fact.

In the eighth circuit a case arose in which a .party was injured upon a covering to a sidewalk, or cross walk. The party injured knew the exact condition of that covering; it had become worn so that it was slippery — it had been raining and at the time of the accident this covering was quite slippery. The plaintiff sought to recover on the ground that, although he knew the exact conditions, he did not know of its danger, did not know it was dangerous, and the two lower courts, sustained him in that theory.

The Supreme Court reversed thq judgment of the lower courts and held that if the plaintiff knew all about the condition of the walk, he was • ibound to take cognizance of its dangers, if there were any. The Supreme 'Court held that an employe, experienced in his business and the duties incident to his work, is chargeable with the dangers resulting from those de-fects of which he has knowledge. The case of Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. Rep. 585], supports that proposition.

The criticism then, of this request is not just. There was no error on the part of the court in giving this request to the jury. Just what ■view the jury took of the situation and what their findings were, under ‘this request and the charge of the court cannot be definitely ascertained, íunder the general verdict which was rendered. There was no special finding as to the effect of this rule.

Again it is said that the court erred in giving to the jury request No. 7, made by the defendant on the trial of the case. The effect of that request has been a matter of much discussion since the case was submitted to the court, among the members of the court. That request reads:

“That if the jury find that on the morning in question the decedent was at work on the track of the defendant at a point about 275 feet south of the crossing of th'e tracks of the Lake Shore and Michigan Southern Railway Company and the defendant company; that the morning was a fine, bright, quiet day; that the train which struck decedent was coming up a grade and making a rumbling and puffing noise; that the decedent was standing up when he was struck by the train; and if the jury find that said decedent, in the exercise of ordinary care by looking, would have séen the approaching train, or by listening would have heard the noise of the approaching train, a presumption of negligence on his part would arise; and before the plaintiff can recover, the burden rests upon him to remove such presumption and show that he was exercising ordinary ■care, by a preponderance of the evidence; and such evidence must be exculpatory; it must show some reason; it must sustain some excuse; it must appear from the evidence that while this seems to be negligence, and that it seems that Edward Green was negligent, yet under the peculiar circumstances, that result does not follow.”

That request, as we think, was aimed at the burden of proof upon the issue of contributory negligence of plaintiff. In the charge of the court to the jury, the court said:

“In the transaction under investigation, the circumstances required the exercise of ordinary care on the part of Green to avoid injury. If the evidence offered by the plaintiff does not disclose any want of such care, on his part, the burden is on the defendant to show that he did contribute directly to his death, and the burden in such case, must be sustained and the facts shown by a preponderance of the evidence, as before defined.
“If, however, the plaintiff’s evidence in support of his cause of action, raises the presumption of such contributory negligence on the part of Green, the burden rests upon the plaintiff to remove that presumption by a like preponderance of the evidence.”

It is quite clear that if, on the trial of the issues in this case, the plaintiff had produced evidence establishing the fact recited in this request,. it would have raised a presumption of negligence of decedent and the burden of removing that presumption would have rested on plaintiff and a failure to remove it, would have defeated his recovery.

The exact meaning of this request is, that if the jury found the facts enumerated in the request, and if, in the exercise of ordinary care by looking, decedent would have seen the approach of the train, or by listening, would have heard it, a presumption of negligence would arise on his part which it was his duty to rebut. This was right. There was no error in giving to the jury this request.

Request No. 8, which I will not stop to read, upon the subject of the care required of the plaintiff, we think was not misleading as claimed, but was properly given to the jury. We think the criticisms made of the general charge of the court are without merit and the charge as a whole, in connection with the requests, fairly embody the law applicable to the facts in the case.

Complaint is made of the rulings of the court in excluding evidence that was offered on the part of the plaintiff on the trial, and one class o£ questions which were excluded, tended to establish the fact of the exact position of the decedent some ten or fifteen minutes prior to the time he was killed.

Ordinarily, when it becomes important to show the exact situation at the time of the happening of a certain evént, testimony upon either side as to existing conditions, would be competent; but' the nature of this man’s work upon that track was such as to require an almost constant change of position, and the fact that he was in a certain position with his back in the direction toward which the train approached ten or fifteen minutes before, the happening of this accident, would not necessarily mean that he was in the same position at the time the train struck him. The trial judge might have permitted that testimony to go to the jury without error; but taking the nature of the work, the circumstances surrounding decedent at the time, it is clear that he could not have got himself into any position where, in the exercise of ordinary care, it was not his duty to have observed the approach of that train; and hence the exclusion of this question was not such error as requires the reversal of this judgment.

Again, it is said that the defendant was permitted to show that others heard the approach of the train and got off the track, and that this was for the purpose of raising the presumption that the decedent also heard the train and might have left the track.

The connection in which that is stated, is this: A witness, a co-employe, was on the witness stand and he was asked: “You heard .the train coming and got off the track, did you?” “Yes, sir.” And that without objection. “Where was it when you first noticed it?” “It was going across the Lake Shore tracks.” “That is where it was when you got off?” “Yes, sir.” “The other section men were there, — how many of them?” “I don’t know just how many there were, but in the neighborhood of eight or ten of them.” “All the rest of you heard the train and got off?” “Yes, sir.”

Counsel for plaintiff then objected and the court said, “The answer may stand. The objection is pretty late,” and an exception was taken.

This was holding counsel to a strict rule. Counsel for plaintiff said, “I object to the question and answer and ask that the answer be stricken out.” We think, if we had had the ruling of the trial court to make, we should have permitted that answer to go out. The question and answer, we think, were clearly incompetent. But the answer did not add anything to the conceded facts in the case. This witness had testified he heard the train coming and got off the track. There were eight or ten others there and incidentally they say all the others got off the track. It was conceded that no one else was hurt. We do not think it a sufficient reason for reversing the judgment because this testimony was admitted although the motion to strike out might well have been granted.

The conclusion that we reach is, that there was no prejudicial error in any of the rulings upon the admission or exclusion of the testimony' for which this case should be reversed. There is nothing that leads us to the -conclusion that the plaintiff did not have a fair trial. The only trouble with this case was, that it was weak.

It is said that this case should be governed by the case of Railway v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]. It is a little dangerous to say that one case should govern another case on its facts. Two cases might be cited in which the one should rule the other, but all this case of Railway Company v. Murphy holds is, that it was proper in that case to have submitted to the jury the question of contributory negligence of the plaintiff, Murphy. In the third clause of the syllabus, the court say:

“The evidence as to contributory negligence on the part of deceased made a case which, at least, was doubtful, and about which different minds differ as to the proper inference to.be drawn. Such a question cannot properly be determined by the court as matter of law, and should be submitted to the jury. The request was properly refused.”

That request was this, page 137: “ ‘ Upon the undisputed facts in this case it appears that the defendant railway company was not guilty -of actionable negligence, and that the deceased was guilty of contributory negligence which brought about his death, and the verdict of the jury should be for the defendant.’ ”

This was properly refused, the court holding that the question of fact should have been submitted to the jury. It was submitted to the jury; the jury found in favor of the plaintiff and the court sustained the verdict.

In this case, the court did not undertake to say as matter of law, that the plaintiff, under the facts in the case, was guilty of contributory negligence, but left the facts to be found by the jury, stating what would .amount to contributory negligence, if the jury found such facts. The jury found in favor of the defendant in this case and with that finding, the court is entirely satisfied. This discussion might be extended still further, but on the whole, we have reached the conclusion that there is no error apparent upon the record for which this judgment should be reversed, and the judgment of the court of common pleas is affirmed.

Parker and Marvin, JJ., concur.


author: PARKER, J.

text:
    NEGLIGENCE — TRIAL—ERROR—PLEADING.
    [Huron (6th) Circuit Court,
    October Term, 1904.]
    Parker, Hale and Marvin, JJ.
    Hale and Marvin, JJ„ of Eighth Circuit, sitting in place of Hull and Haynes, JJ.
    Michael Egan v. New York, C. & St. L. Ry.
    1. Refusal of Pasties to Amend Petition Warrants a Dismissal Under Secs. 6313 and 5314 Rev. Stat.
    The refusal of plaintiff to amend his petition as required by the court is, in effect, a neglect upon his part to prosecute his action, and the court may, in such case, dismiss the action under favor of Sec. 6313 Rev. Stat. Such failure is, also, in effect, a disobedience of an order concerning the proceedings, and will warrant the court in dismissing the action under the fifth clause of Sec. 5314 Rev. Stat.
    2. Order Dismissing Action Without Prejudice for Failure to Amend Reviewable on Error.
    The order of the trial court in dismissing an action without prejudice and at plaintiff’s costs, on account of failure to amend his petition as required by the court, is reviewable on error.
    3. Mere Averment That Certain Thing Was Proximate Cause, Insufficient.
    An averment that a certain thing was the proximate cause of any injury is not sufficient; the pleading must disclose the facts which show the proximate cause.
    4. Particular Defects and Faults Should be Pleaded Definitely, When.
    Where the alleged proximate cause of an injury to an employe arises out of alleged defective tools or appliances furnished to him by the master, the faults or defects therein should be alleged definitely and distinctly. And if the alleged fault of the master consists in directing or making it necessary for the employe to pursue an improper and unsafe plan or method in his work, the respects in which such plan or method is improper and unsafe should be alleged definitely and distinctly.
    6. No Presumption of Negligence From Mere Happening of Accident.
    The defendant in an action for negligence is entitled to know the precise fault charged against it, on account of which plaintiff seeks to recover. A court cannot infer that appliances used by a servant were defective or that defendant was at fault, from the mere happening of an accident.
    6. Petition Demurrable for Want of Certain Averments, When.
    Where the petition discloses that the proximate cause of injury was some fault in the immediate tools used or methods of work employed by plaintiff, but there is no express allegation to the effect that defendant was at fault in furnishing tools that were improper or- unsafe, or in directing plaintiff to proceed by a method that was improper or unsafe, or that plaintiff did not know of the defect, fault and dangers, or, that being informed, he was excused because of the promise of his employer to remedy the defects or cure the faults, it is, in such case, demurrable.
    / ERROR.
    • McKnight & Thomas, for plaintiff in error.
    C. P. & L. W. Wickham, for defendant in error.
   PARKER, J.

This is a proceeding in error brought to obtain a reversal of the judgment of the court of common pleas of this county.

Michael Egan brought his action against the railroad company to recover damages which he claims he sustained through the negligence of the company in furnishing him with improper and unsafe appliances with which to do his work.

An answer was filed to his petition, and a reply to the answer. A jury having been impaneled, the case proceeded to trial. ■ Objection was made by the defendant to the introduction of any evidence under the petition upon the ground that it was fatally defective in not stating facts constituting a cause of action.

Counsel for plaintiff, when his attention was called to the alleged defect, seems to have conceded that the petition was defective in the particular pointed out, and he took leave to amend, and filed his amended petition.

To that amended petition, the defendant filed a motion requiring that it be made definite and certain in certain particulars. The court sustained the motion and by its order, required the plaintiff to amend accordingly. The plaintiff declined to make any further amendment and stood upon the petition as it was, believing that it was sufficient, and that the order of the court requiring the amendment was not well grounded, and upon plaintiff declining to make amendment, the court dismissed his action.

This action of the court, assuming that the court was right in ordering the amendment, we think was entirely proper. We think the refusal of the plaintiff to amend, as required by the court, amounted to a neglect upon the part of the plaintiff to prosecute his action, and that the court thereafter, might have dismissed the action of plaintiff under Sec. 5313 Rev. Stat. Also that it amounted to a disobedience by the plaintiff to the order concerning the proceedings, and that therefore, the court was warranted in dismissing his action under the fifth clause of Sec. 5314 Rev. Stat.

It has been intimated that perhaps this action of the court may not be reviewable by a proceeding in error; but we are of the opinion that this order dismissing the action and adjudging the costs against the plaintiff, although the action was dismissed without prejudice, was such a final order under the statute upon the subject of proceedings in error as is reviewable on error.

The case of Evans v. Iles, 7 Ohio St. 233, is a case in point. I read from the third clause of the syllabus: “An order of a court of common pleas that a case be stricken from its docket for want of service, and for the payment of costs, is not a final judgment from which an appeal lies to the district court [see Sec. 370, code; Sec. 5310 Rev. Stat.], but is a final order, for error in which a petition in error is the proper remedy.” .[See Sec. 512, code; Sec. 6707 Rev. Stat.]

I judge from some notations I find in Whittaker’s Annotated Civil .‘Code that there are some holdings of the circuit courts in the state, more directly in point..- We feel entirely satisfied, however, that the action of the court may be reviewed by this form of proceeding, and therefore we come to the consideration of the question whether or not the court erred in making this order requiring this amendment.

The amended petition sets forth that the defendant is a railway corporation; that prior to and on July 23, 1901, the plaintiff was employed by the defendant in and about its yards, tracks, ■ switches, and roundhouse in the village of Bellevue, as a servant of said defendant in the capacity of assistant to the hostler, and that one of the duties assigned plaintiff as such assistant to the hostler was to operate certain drop grates of the company’s engines. That engine No. Ill was one of such engines having a drop grate. That to drop said drop grate it was necessary to press down a lever or bar on the side of said engine and release it from a hook fastening and then permit 'that end of the lever or bar held by the hook fastening to move upward and forward. That said lever or bar was so made that it was intended to be pressed down and controlled by taking hold of said lever or bar by the hand of the operator, and that said hook fastening was not a self-releasing hook when the lever was pressed down but had to be released lj>y taking hold of it by one hand of the operator.

Plaintiff says that the construction pf said hook fastening, lever and bar, with its connecting parts to said drop grate, and said drop grate, and the fire box within which the said drop grate was placed, were negligently, faultily and improperly constructed long prior to said twenty-third day of July, 1901, in that said grate when covered with a large amount of ashes and cinders was difficult and dangerous to drop.

That said lever or bar with its connecting parts to said drop grate and said drop grate and the fire box within which the said drop grate was placed, were permitted to become and be out of repair for a long! time prior to and on the said twenty-third day of July, 1901, so that said grate when covered with a large amount of ashes and cinders was difficult and dangerous to drop. v

■ That because of said negligent, faulty and improper construction of said hook fastening, lever or bar and its connecting parts to said drop grate, and said drop grate, and the fire box within which said drop grate; was placed; or, the permitting to become and be out of repair of the hook fastening, lever or bar and its connecting parts to said drop grate, and the drop grate, and the fire box within which the drop grate was placed, or because of both the faulty construction and the lack of repair, or some one or more of the above named causes, said drop grate when covered with a large amount of ashes and cinders was very difficult, hard and dangerous to drop; all of which was known to the defendant company long prior to July 23, 1901, at which time plaintiff received the injuries complained of.

Plaintiff says that he has not the means of knowing and does not know, more specifically than he has above stated, the reason why said drop grate was so difficult, hard and dangerous to drop, and in what particular said construction was faulty or in what particular said hook fastening, lever or bar with its connecting parts to said drop grate and said drop grate was out of repair, and for lack of such knowledge cannot more specifically state the reason or reasons for the conditions then •existing relative to the lever or bar and its connecting parts to said drop .grate, and said drop grate, and the fire box within which the drop grate was placed.

Plaintiff says:

That about ninety days prior to said twenty-third day of July, 1901, and again about twenty days prior to said twenty-third day of July, 1901, he informed one of defendant’s officers and servants, to wit, Thomas F. Carberry, who was plaintiff’s superior, of the condition of said engine, as aforesaid, and said officer and servant, to wit, Thomas F. Carberry, at the times aforesaid when informed by plaintiff of the condition of said engine promised plaintiff that said condition- would be remedied and said engine would be repaired, and relying upon said promises, plaintiff continued in the employ of said defendant.

That on or about the twenty-third day of July, 1901, plaintiff in the regular course of employment by defendant, had the said drop grate to drop on said engine No. Ill, which drop grate at the time was covered with a large amount of ashes and cinders. And that because of the faulty condition of said drop grate, by reason of its faulty construction; and by reason of its being out of repair as aforesaid; or because of its being both improperly constructed and out of repair, plaintiff could not press said lever or bar down to release it from its said hook fastening by taking hold of it with his hand or hands.

That at one or more times prior to this time on July 23, 1901, when plaintiff could not drop said dtop grate by hand,- the chief hostler, whose orders plaintiff was bound to obey, had shown and directed plaintiff to use an iron bar as a pry to pry down the said lever or bar on said engine No. Ill, to release it from the hook fastening so that the drop grate might be dropped and that at least on two different times prior to this occasioa on July 23, 1901, the aforesaid Thomas F. Carberry was present and in conversation with plaintiff while he was attempting to drop said drop grate of said engine No. Ill, by the use of an iron bar, using it as a pry to pry down the said lever or bar to release it from the hook fastening,, so that the drop grate might be dropped, at which times the aforesaid Thomas F. Carberry did not make any objection or in any way question the method employed by plaintiff to press down the lever or bar and drop said grate, bkt did say to plaintiff that he would see to having the necessary repairs made, — that he would have it fixed.

That plaintiff, following the direction given him by the chief hostler found a small bar of iron and proceeded with all proper care and caution to use it as a pry by placing it across the said lever or bar with one end under a pin on the outside of the fire box and holding the other end in his hand, and pressing down on it to release said lever or bar from'said hook fastening, and at the same time, taking hold of said hook with his other hand that said lever or bar might be properly released, and while so employed ih attempting to release said lever or bar from said hook fastening, said bar of iron used as a pry as aforesaid, slipped off said pin, and said lever or bar flew back up to the top of the hook fastening, and plaintiff’s third finger on his left hand was mashed and broken.

That defendant’s failure to repair and fix said engine as promised by the aforesaid Thomas F. Carberry, was the direct cause of plaintiff’s said injury and the consequent evils following it.

Then follows a recital of the physical consequences to the plaintiff showing how he was injured and the effects, and a prayer for damages.

The character of the motion is disclosed by the order made by the court, and the order made was as follows:

“Motion to make amended -petition more definite and certain was heard and submitted to the court. Motion sustained by the court and plaintiff ordered to make his amended petition more definite and certain by averring therein: First, what caused the bar used by plaintiff to press down the bar in question, to slip from under the pin on the side of the fire box o'f the engine; second, how, and in what manner ‘The defendant’s failure to repair and fix said engine as promised by the aforesaid, Thomas F. Carberry, was the direct cause of the plaintiff’s said injury and the consequent evils following it ? ’ To the sustaining of said motion by the. court requiring plaintiff to make his petition more definite and the plaintiff then and there excepted.”

It will be observed, to state the matter very briefly, that the allegation is that the engine was so designed and constructed as that this operation of dumping the ashes and cinders, might and should be done by hand, by taking hold of a certain lever; that that was the proper way to do it, but that the engine was so faultily constructed and had become so badly out of repair, that that course was impracticable and that, therefore, in order to press down the bar to release the hook holding it, and then allow it to come up and forward, it became necessary to use some sort of a lever to make the necessary pressure upon the bar.

The particular defect arising out of faulty construction or lack of repairs whereby the use of such lever was made necessary is not pointed out, and it seems to us, that, as the petition stands that was not necessary; that it was sufficiently stated; that this is not the matter with respect to which plaintiff was required to amend; that this is not the matter of which the defendant desired to be more particularly informed by the pleadings.

What the defendant desired to know, and what the plaintiff was required to set forth, was the precise cause of the bar slipping, assuming that it was necessary to use a bar because the machinery could not be handled by hand as designed.

“What cáused the bar used by plaintiff to press down the bar in question, to slip from under the pin on the side of the fire box of the engine.” That was one thing to be definitely stated, and defendant also desired to have pointed out how it was or why it was that the .failure to repair and fix the engine was the direct cause of the plaintiff’s injury.

It seems to us that it fairly appears from this petition, as it stands, that the alleged defect in the construction of the engine, or a defect growing out of its being, out of repair, was not the proximate cause of his injury; that the petition itself discloses that the proximate cause was something connected with the immediate operation in the use of the hand lever that the plaintiff had selected to use to press down the other bar. The petition we think, sufficiently sets forth, therefore, and discloses the occasion for the use of the hand lever or bar that was selected. The petition sets forth sufficiently a knowledge of the alleged defects upon the part of the defendant railroad company. We think the petition sets forth sufficiently a promise upon the part of the defendant, or plaintiff’s superior in the service, to repair these defects, to justify the plaintiff in remaining in the service, if such promise to repair was under the circumstances,. a matter of any consequence in the case; and as to that, I shall make some further remark.

We think the petition sets forth sufficiently the directions upon the part of-plaintiff’s superior, if the chief hostler and this man who is named are the same; but about that we are in some doubt. If they are the same person, it sets forth sufficiently the direction to proceed in this way to do the work; but if the chief hostler is not the same person, then it' is doubtful whether there is enough in this petition to show that he was the superior of plaintiff and not a fellow servant. But passing.that, and assuming that there is enough averred in the petition with respect to the use of this selected bar in the presence of the superior to justify the plaintiff in using it as he did, we come to the more particular consideration of the things complained of in this motion — the things against which the motion is directed. I have mentioned these things with respect to which the allegations in the petition appear to be sufficiently definite and certain because counsel for plaintiff in error seem to regard the motion as being directed against and sustained as to those allegations.or some of them; but in this counsel are in error, as clearly appears from the order I have read.

It is not enough to aver that a certain thing is the proximate cause of an injury. The pleading must disclose the facts which show that it is so.

So far as appears by this petition, there was no harm to the.plaintiff resulting from this machinery being improperly constructed or being-out of repair. So far as appears, it was as safe or safer to the plaintiff to proceed as he did by the use of this hand lever that he selected, than it would have been to handle the machinery as it was designed to be handled.

■ It is not stated, and it is not pointed out that there was any fault in the method that he was obliged to pursue, or any inherent difficulty or danger in that method'that would make the defect in the machinery the proximate cause of the injury, or that enables us to trace back to and fix upon such defect in the machinery as the proximate cause of the injury. For aught that appears, this was an entirely safe, proper and convenient way to proceed, and the trouble arose from something in the manner of the use of this bar that he selected, or something inappropriate or defective about the appliance itself.

From the mere fact that an accident happened we cannot infer that there was any defect therein, or that the railroad company was at fault. The defendant had a right to know the- precise fault charged against it on account of which the plaintiff sought to recover. He said he was injured by this bar slipping off, and he asks for damage's against the defendant on account of that; but he does not say that the defendant put him at the work and directed or caused him to pursue a plan or method of operations that would necessarily enhance the danger; neither does he say that the appliances furnished were at all defective — I mean the appliance he selected and used to move this hand bar of the engine.

He is asked to state how it came about that the lever slipped off the bolt. He should do that. The defendant has a right to know that. It has a right to know whether it is claimed that the bolt was too small for the purposes, or too smooth, or too much rounded or beveled, or whether the bar was too light or too heavy, or too slippery, or too rounded at the end where they undertook to attach it to the bolt, or whether the fulcrum was unsteady or insecure, or whether it is claimed the whole operation, with such appliances, was necessarily dangerous, or what was wrong with the appliances or the method pursued, and it is not informed by this petition as to any of these points, or of any particular ground of complaint.

We conclude, therefore, that the court was right in sustaining the-motion. But we go somewhat beyond that. If the petition did not state a cause of action, as it stood, we would not reverse this order and judgment, even though it should appear to us that the court was in error as to the precise point upon which it acted or proceeded in making the order.

We think that because of failure to make it appear that defects in the machine whereby it could not be operated without the use of a lever— defects in construction — or defects because of a lack of repair, constituted the proximate cause of the injury; that is, because the pleader has failed to point out that, being in that condition, it was necessary to pursue a. method of operation that was inherently and necessarily dangerous, so that the proximate cause could be traced back to the original defects in the machine (but it appearing that the proximate cause of the injury must have been some fault in the immediate tools employed), and there being no allegation to the effect that plaintiff did not know of the defects or faults therein and the dangers incident to .the use thereof, or that though he had such knowledge there was a promise to remedy such defects, or cure such faults, the petition is demurrable under the case of Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857].

As the petition now stands, we cannot find the proximate cause further back than the immediate tools used or methods employed in the operation. But it is not averred with respect to these things that the defendant was at all at fault in furnishing tools that were improper or unsafe, or in. directing the plaintiff to proceed by a method that was improper or unsafe. Nor, is it averred that there was danger or defects in such appliances of which plaintiff was not informed, or that, being informed thereof, he was excused because of a promise made on the part of the employer to repair or correct the defects or faults. Therefore, upon the additional ground that the petition was demurrable the court was justified in dismissing the case. The judgment of the court of common pleas will be affirmed.

Hale and Marvin, JJ., concur.


author: HAYNES, J.

text:
    EVIDENCE — TRIAL—NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    October 20, 1904.]
    Parker, Hull and Haynes, JJ.
    Leroy Welever v. William S. Williams et al.
    1. Evidence Contrary to Allegations oe Pleadings and Theory of Case 13 Incompetent.
    Evidence that defendant was negligent in a matter other than that alleged in the petition as plaintiff’s cause of action, and which is also in support of a theory contrary to the one upon which the case is being tried, is incompetent, and should be ruled out.
    2. Negligence Must be Established by Direct Proof, or Must be Reasonably Inferred Prom Pacts Proved, etc.
    Negligence must be established by either direct proof of the facts constituting it, or by proof from which it may be reasonably inferred; there should be no guessing by either court or jury; and if the negligence charged is not so established, the court should direct a verdict for defendant.
    ERROR.
    O. S. Brumback, for plaintiff in error.
    Smith & Baker, for defendant in error.
   HAYNES, J.

(Orally.)

In this case, a petition in error is filed for the purpose of reversing the action of the court of common- pleas, the plaintiff in error being plaintiff below and the defendants in error being defendants below. The plaintiff, claiming to be an employe of Williams and company, was employed to be about the work that they were carrying forward, of making “cribs” or perhaps laying timbers in connection with the work of the terminal road, cribs being made in the construction of a bridge across the river. The firm, named Williams Brothers, and George H. Morse and John F. Mayer had the job and were carrying on the work. The crib was composed of timbers and it was to be joined together, and in doing so they used timber of different lengths, the crib being sixty feet long by twenty feet wide or perhaps wider, and they used timbers varying in length from twenty feet and in size about twelve or thirteen inches square so they would lie close together. They.brought these timbers to the banks of the river upon a scow and upon that they had a hoisting machine, and they piled these up on the banks. They had at the bank at the place where these timbers were piled some skids to take timber from the bank down to the river, on an incline, and there the skids rested upon a platform that was being used for the building of the crib. In order to retain this crib in its place and to prevent it sliding about, it became necessary to nail certain cleats on the platform; and the plaintiff was ordered by the foreman to assist in nailing the cleats; and while he was doing that work, a piece of timber from the pile on the bank, or perhaps resting in part on the skids, came rolling .down and struck him, threw him into the river, and injured him.

He brought the action against the firm; and in his amended petition, the gist of the action was set up in his cause of action, as follows:

“A number of large timbers had been piled near the upper end of said skids or ways, and while plaintiff was in the act of spiking said cleats on the ways as ordered by his foreman, other workmen were ordered by defendants to move and handle timbers near plaintiff in such wise that one of them rolled down over and across the ways where plaintiff was at work, so striking plaintiff as to knock and throw him into the river, and causing plaintiff great and permanent injuries as hereinafter set forth.”

The parties proceeded to the trial of the case, and testimony was introduced on behalf of plaintiff; and at the conclusion of that testimony, the attorney for the defendants moved the court to direct a verdict for the defendants, stating in his motion that there was no cause of action stated in the petition; but as against that, the court called his attention to a single paragraph he thought was sufficient; and the matter was disposed of on the other point, to wit, that there was no evidence to show that there was negligence on the part of the defendants. There had come up in the trial of the case a question in regard to the admission of evidence, and the plaintiff had taken the testimony of the foreman, who was absent from the state; and he was inquired of in regard to this injury, and he proceeded to state in reply to a series of questions, that the accident occurred in this way; that the logs were brought upon this scaffold,- and that Mayer, one of the firm, was superintending the lifting of those logs or timbers from the scow to the bank and placing them near the skids, and as he did so, there were no guy ropes at the side, and as the logs were up in the air, they went swinging around and around and dropped helter and skelter on the banks or on the skids; and that he called attention to the fact they were doing it and that they should not do it; but that Mayer kept on until they got so high, that one of them rolled off and fell down and that was the cause of the injury. Objection being made, the court ruled out this testimony; and we think he properly ruled it out, because that in itself was not stated as á cause of action, and a different matter was really stated, and the testimony that had been offered by the plaintiff up to that time had all been upon a different .theory and a different case altogether from that, and in accordance, as we understand it, with- the allegations of the petition; and we think the court below was right in his ruling upon that point.

Now the question comes up whether the court erred in directing a verdict for the defendant. It will be noticed that the statement is, that “a number of large timbers had been piled near the upper end of the skids or ways, and that while plaintiff was in the/act of spiking said cleats on the ways as ordered by his foreman, other workmen were ordered by defendants to move and handle timbers near plaintiff in such wise that one "of them rolled down over and across the ways where plaintiff was at work, so striking plaintiff as to knock and throw him into the river.’" Now the allegation is that they were ordered by defendants to move and handle timbers near plaintiff in such wise that one of them rolled down-over and across the ways. It was because of that allegation that the court below stated that the petition stated a good cause of action. When we come to have the testimony, it was claimed on behalf of the defendants that there was no testimony to sustain that allegation, and the court below finding such to be the fact, directed a verdict to be found for the defendants.

We have read this testimony over very carefully and we have read the brief of counsel very carefully and the testimony there set out; ‘and the question arises whether any act that was being done there at that time by order of the foreman was the cause of this accident. The Supreme Court has well said briefly, that,

“To establish negligence, there should be either direct proof of the facts constituting such negligence, or proof of facts from which negligence may be reasonably inferred. There should be no guessing by either the court or the jury.” Clev. T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821], fifth syllabus.

Testimony was offered to show that at about the same time that the plaintiff was ordered to nail down those cleats, an order was given by the foreman, that they should give a stick of 'timber to the foreman, and it is said they proceeded to do that — four or five of them — the evidence seemed to indicate that there were six of them and. that they proceeded to some point at, near or on the pile, and with instruments proceeded to take up the log or stick of timber; that at or about the time they commenced to lift the timber, they heard a cry that Welever was in the river, and that they immediately laid down the timber and then some of them proceeded to go over where he was.

There was some testimony tending to show that the foreman was by them at the time the -timber was taken, and there is other testimony that he simply ordered them to take it. There was some testimony, that as a general rule, the timber that was to be taken was pointed out by the foreman; .exactly what it was, at this time does not appear; but there was testimony tending to show that he told the men to go up and get the stick — that is, this stick. There was testimony on the part of the plaintiff that at the time that he went out to nail the cleats, he saw one stick protruding 'out of the pile, and that he pressed down on it and lifted on it, and that he said to the foreman, “Took out and not let this stick down” and that the foreman told him to go down and nail his cleats, and that he would take care of the stick.

Now there was no testimony tending to show where that stick was taken from the pile, how near the pile, how near the front of it or what' part of it. There was no testimony tending to show that the lifting of this particular stick released the stick that fell, in any manner, or released any other stick that released that, or in any other manner that the foreman disturbed this stick that fell or caused it to fall. There is a lack of evidence entirely on that point, arising from the fact that the parties did not notice or did not remember — or,- as it has been suggested, did not want to remember — but whatever the cause may be, the fact is, that the testimony does not show that the lifting of the stick was the procuring cause of the falling of the piece of timber that rolled down and injured the plaintiff. It is unnecessary to go over the testimony. That is our observation and conclusion, after having read and carefully reread the testimony, and discussed it; and that leads to the conclusion that from the law and the evidence in the case, that the court below was right in ordering and directing the jury to return a verdict for the defendants; and the action of the court of common pleas will be affirmed.

Parker and Hulk JJ<> concur.