author: WINCH, J,

text:
    ELECTRICITY — MAXIMS—NEGLIGENCE.
    [Huron (6th) Circuit Court,
    1905.]
    Haynes, Parker and Winch, JJ.
    (Judge Winch of the eighth circuit, sitting in place of Judge Wildman.)
    Charles E. Marsh et al. v. Lake Shore Elec. Ry. et al.
    1. The Pact op the Escape of Electricity is not Sufficient to Charge Electric Companies fob Damages Caused thereby, in the Absence of Negligence.
    The mere fact that electricity, generated hy an electric railroad company, escaped from its trolly wire to one of its span wires; thence to a telephone cable of a telephone company; thence to the telephone cable of another telephone company; thence to a gas pipe in a store building; thence to the lead connection with a gas meter in the basement, which it melted off, igniting the gas, setting fire to the floor above and damaging a stock of goods,' does not render all or any of said companies liable in damages to the owner of the goods, in the absence of proof of negligence on the part of one or more of said companies.

      2. Keeper -or .User .is not. Liable eor. Injuries Caused by Electricity unless-Negligent. . , .
    Electricity is of a highly dangerous character, but of such common and ■ recognized use in modera civilization that its"use and keeping are- sane-' tioned by law, and if injurious consequences flow from its use or, keeping, negligence of the user or keeper must be ‘shown to render him: liable to - ■ ' one injured by -the electric current.. ■. ; ■ ■
    3. “Res- I-psa Loquitur”.does Not-Apply, to Electric Currents.■ ■
    . .In the absence of a contractual relation- between the parties pr oí a statute-regulating the matter, the doctrine of res ipsa loquitur applies only to ‘ "the case of such highly dangerous things'or agencies as are kept or-hsed solely -bec.ause of. their highly .dangerous character, and not to electricity, which is classed with steam, rather than dynamite.
    [Syllabus by thé court.]"
    .ERROR, to Huron common pleas court.
    McKnight'& Thomas, for plaintiffs.'
    S. ÍVÍ: Young and A. Y. Andrews;‘for "Albion E; Lang; receiver of Lake‘Shore Electric'Ey." ' '' ' • ' '' ■
    C. P. & L. W. Wickham, for Central Únion'Telephone Co. '''
    A. ,M. Beattie and Jesse Vickery, for Local Telephone Co.
   WINCH, J,

’ This was- anl actioh for damages1-brought by. plaintiffs -to recover for loss to' a stock of goods in a store building in Norwalk by reason- -of fire alleged’to'have- been caused by the negligence ■ of the defendants.' Some of the defendants were dismissed from--the case.by the trial.judge and as to this, we understand there is no complaint.

The ease was submitted to the jury as to the negligence of the defendants, Albert E. Lang, receiver, operating the Lake Shore Electric Railway, the - Central' -Union Telephone "'Comp'any- áfid the‘Local Telephone Company. - .,. ..

Plaintiffs claim that the fire originated by reason of the following sequence of events:

On August 2, 1902, the Central Unión Telephone Company was stringing a-messenger, wire on the south side, of East Main-street, east of where.the fire occurred, using a tackle and horse to stretch the wire. A rope in the tackle attached to ■ the - messenger wire broke and permitted the ¡laid wire to'sag dbwn onto a span wire- of the Lake Shore Electric Company which was, heavily, charged’ with, electricity from its trolley -wire.' ■ The electric current-passed easterly on this- messenger wire,until it came to a.,guy wire.crossing thdstreét'to the‘.north; which it'followed1 to-the north side of the’Street-where it met- certain lead hangers supporting the cable covered" wíth 'á. leá.cl' sheáth/belonging to "the. Local Telephone-.. Company;. it ¡traveled-on=.this lead, sheath to the wpst. an,d,.-followed it southerly, back-across the street and into the ex-' -change of thp, Lo.ceiI- Company on the top-floor -of- the--building,-.'the ground ñqor,.and basement .of■ which .-¡was■-occupied^by-■ the' plaintiffs. This, cable on the. top- floor ,o£ the hqilding -crossed- a, gasapipe with- which it was. ip-.contact,..or.so near that the electric-current-passed.by-arcing, or otherwise into the gas pipe and down it to the basement where-it came to the.lead pipe connecting .the.-gas pipe do -the; gas meter, .which lead conneetion.it melted, off, allowing -the- gas to- escape and ignitihg it.' ■ The ignited gas-set fire do the-floor above -it and .from this -fire- thé damage arose, .as it is. claimed; -. • . 1 . •• '•

The plaintiffs-alleged’that'the Lake Shore 'Electric’ Company, which-name may--be used- as ’meaning1 its- 'receiver, Was" negligent and tailed to use ordinary c'are in' not placing and maintaining' an 'insulating device in the span' wire-'between its trolley wire-'ahd the pole' to‘which said span-wire was- attached,--'and iff hot placing'a1 guard wire’'over-said span wire. •• • •

'■-'They alleged t¿at'"the'Central Union ’ Company w'ás" negligent in allowing its messenger''wire"to come'in. contract with k'áid span wire ánd -at the same-time’with the-guy wire crossing thé street.'

They alleged -that the Local'Company was negligeht in'placing its lead-sheathed cable so-near to the-iron-gas ■ pipe'connected with the meter-in-plaintiff’s 'basement that1 any-heavy current of electricity would arc from1 said cable- to -said gas-pipe; without providing some'adequate insulating deviee'tO'prevent such arcing;- ■' ' ..’

-.The answers of ■ the defendants- •severally deny negligence'on the part of- the. defendants and-that the fire'occurred in1 the’'manner-claimed by plaintiffs. .-One or-more -of-the- defendants 'deny that-the fire'occurred at all, and'allé'ge-that-if 'it' did,-it was'by-reason'of the-plaintiffs’, own negligence; " !- > - ■ - - ■

Plaintiffs’ reply denies contributory negligence.

The'-issues- of fact thus-raised'-were submitted tu'the' jury which found for the defendants, and judgment was 'éntéred'-aeeord'ingly-. ■ •

As to the many exceptions to rulings on evidence, which have been called t-o-our attention,'all-'we" caff say-is; that' we have examined and considered -them, -but-find nO error prejudicial to' plaintiffs which' would' require'a reversal of this-case-. The bill of éxééption's is so' Tong; ■ the rulings .eomqiai,n'ed"of-Bo-mimerbus-and'the'charafeter-of the 'évMetíec, much of it expert testimony as to the nature and characteristics of electricity, -so technical and abstruse, that no good 'purpose would be-subserved by reviewing in detail the rulings complained of.

As to the charge, exceptions were taken by the plaintiffs to the-charge as given by the court, to the giving of certain requests to charge of defendants and the refusal to give certain requests to charge of plaintiffs.

The sum and substance of the objections to the charge is, that it held the plaintiffs to the burden of proving the negligence of one or more of the defendants as charged in the petition, while plaintiffs now claim that the doctrine of res ipsa loquitur should have been charged;; in other words, that, having proved the fact of the injury and the defendants’ connection with it, as claimed, it was for the defendants to prove, if they could, that they were without fault. . ¡

The charge as given, is published in Marsh v. Railway, 50 Bull. 189, 192, and for that reason it is not now necessary to restate its-propositions.

What counsel for plaintiffs in error claim as the correct rule for the case, is best,stated in their own words, as follows:

“When we began this action we believed that the doctrine laid down by Judge Blackburn in the ease of Fletcher v. Rylands, 5 H. L. Rep. 330, was the correct rule of damages in this ease at bar, but did not feel so sure as we do now, and plead negligence, and upon a hearing upon motions and demurrers, we took leave to amend and again plead negligence. We are now firmly of the opinion that a statement of the facts, showing that an electrical force was created or gathered, and conducted upon our premises, setting fire to them and causing damages by smoke, .states a good cause of action without pleading negligence. The language used by Judge Blackburn exactly fits this ease, in that we were in and upon our own premises, and the three defendant corporations, in the prosecution of their several businesses for profit, created or gathered together a dangerous and destructive force, from which, if it escaped, injury was liable to follow, and well knowing this, not only permitted it to escape, but constructed a path or channel that was bound, under the laws of nature, to bring it in and upon our premises, by reason of which our goods were smoked and damaged, without any fault of ours.”

There occur to us at least three reasons why the rule contended fon should not have been applied in this case: First, because it is not certain from the evidence that the fire was started in the manner claimed by defendants; second, at least one of the defendants, the Local Com•pany, was not active in the transaction at all; third, the “celebrated and much criticised case of Fletcher v. Rylands,” has never been adopted in its entirety, as the law of this state.

On page 146 of the opinion in the. ease of Langabaugh v. Anderson, 68 Ohio St. 131 [67 N. E. Rep. 286], Judge Price says:

“As yet no decision of this court has adopted the entire scope of Fletcher v. Rylands, and while it holds in general, a good and wholesome doctrine, resting on good morals and sound reason, its application should be made with suitable and necessary limitations.”

But let us taire up plaintiffs’ claim wtih regard to the Lake Shore Company, alone, as that company appears to come more nearly within the scope of plaintiff’s contention. Here was a company handling and using for its own purposes a subtle and highly dangerous energy, harmless, if properly handled, but of such tension and so dangerous if allowed to escape, that injury was sure to happen to persons or property coming in contact with it. The great danger to be apprehended from electricity of high voltage or tension is known to us all, for is it not selected by the state as the instrument for the speedy execution of those condemned to death?

With regard to the rule that the “occurrence speaks for itself,” many cases have been cited to us. Most of the cases are gathered together and analyzed by Judge Price in the case of Langabaugh v. Anderson, supra, and from his analysis, we gather that there are three classes of cases in which the rule is applied:

First, those eases in which a duty is imposed upon the defendant by reason of a contractual relation between the parties.

To this class belongs the sleeping car case, where the' upper berth fell upon the passenger in the car; Railway v. Walrath, 38 Ohio St. 461 [43 Am. Rep. 433]. The railroad company, in effect, was held to be the insurer of the safety of the passenger.

The same rule was applied by the Summit county circuit court in the ease of Wheeler v. Traction Co. 27 O. C. C. 517. Wheeler had contracted with the defendant company to supply him with a current of 104 volts of electricity for incandescent lights. Such current is harmless. The company permitted 1040 volts to pass in over its wire. Wheeler was killed. The company was held to an explanation of the injury and liable, unless it showed that some one else sent in the deadly current.

The case here does not come in this class, for no contractual relation existed between the parties. \

The second class of eases includes those where a statutory duty has been violated, siich-'ás the case of Gas Fuel Co. v. Andrews, 50 Ohio St. 695 [35 N. E. Rep. 1059; 29 L. R. A. 337], where it was held:

“The provisions of Revi ■ Stat. ‘3561a " (Lan:" 5704) impose 'on plaintiff in error the duty of keeping under' its-control natural gas while it is transporting the skme,-and’if''dámage'shoúld result to'oth'ers. without their fault; by''its'explosion vihilé being''thus tránSportéd, the pláintiff'in error would be-held'liable therefor; although not'negligent •in regald thereto:

It is not pleaded in this case that any'duty'is imposed ujióñ :de~ fendahts by statute; which they1'violated. "

A''third class of cases is that where the' defendant is-keeping or using a highly dangerous thing or agency which'is'liable to'do lia-m to Others if it escapes; or is negligently 'used Or handled. ' To this'class belongk the case 'at bar, 'but we find here a distinction pointed out which requires a further ’classification or subdivision into' those which are at all times, in all places and under all circumstances dangerous:'such as are -made, bought, sold and used béeause 'of their highly dangerous character, as to which the Owner assumes" the liability of their accomplishing natural and probable results; and the' other subdivision, those things'of a highly dangerous eharaéter, but yet of such Common, and 'recognized use in modern civilization that their úse or keeping is-sanctioned by law and necessary 'in many departments of industry, as to which the courts hold that théir usé ’being lawful, if injurious consequences flow therefrom, negligence' in' their use must be shown, to render the defendant liable. ' ' ’

Now, to which of these classes belongs electricity of tension sufficient to run a trolley car and which'will kill a’man if hot properly handled? '

• In applying the distinction here drawn to the ease at bar, the court confesses its ignorance of natural science. Much help is to be had by reference’ to the decisions of the Supreme Court of this state, but principally by why of illustration. The law is growing from day to day, as industrial science is growing, so that what may now be. considered in the first subdivision of this class, ten years from, now, b> reason of the advance of the arts, may belong, to tlj.e second subdivision

In the first subdivision belong,the gunpow,der .and nitroglycerine cases, such as the case of Bradford Glycerine Co. v. Manufacturing Co. 60 Ohio St. 560. [54 N. E. Rep. 528; 45 L. R. A. 658; 71 Am. St. Rep. 740], where it was held that the owner, of,the .explosive was liable, for damages caused by its explosion, without proving that he was. negligent.

’Of the same character, iS’fh'e vMdu'S-dOg case of Hayes v. Smith, 62 Ohio St. 161 [56’ N; E.'Rep':’ 879-]: '•>•!*• -.i‘> ■

Oh the'other'hand; it; has 'been'held -that'-negligence'-must be proved in the ease of sparks from-a locomotive, Ruffner v. Railway, 34 Ohio St. 96; explosion of á steam boiler, Huff v. Austin, 46 Ohio St. 386 [21 N. E. Rep. 864; 15 Am. St. Rep. 613], and’ storage óf crude’petroleiun in tanks, Langabaugh v. Anderson, 68 Ohio St. 131 [67 N. E. Rep. 286].

■ In the steam boiler case, it was said:

“‘The defendants ’had á right to place th'e steam boiler on- their premises. Used as it was to run the' saWmill; it' was- in’ -no- sehse a nuisance. As an agent in the various departm'éríts of industry; the steaih engine has become á necessity in modern life. But though’-placed on one’s own premises, the ownef of a steam -engine and boiler will be held responsible' for his' negligence, -if hb' so’ operates the • same as to injure'one who conies lawfully upon the premises by invitation'or permission! • Though doing a lawful act upon his’ 'own premises, he will be liable for'injurious consequences that-may result from' it‘to another, if it was so done as to constitute• actionable negligence.-' In such case there is a proper application of the rule that one should -enjoy his own property in such manner as not to injure that of another. ” '

We are aware that in some states electricity has apparently been classed with dynamite rather than with steam. The strongest expressions of opinion on the subject are found in the Louisiana case of Potts v. Railway, 110 La. 1 [34 So. Rep. 103; 98 Am. St. Rep. 452], but they were not necessary to ¡a determination; of. the case,,for the telephone lineman knew that the span wire of the trolley company was charged with electricity, and the only 'issue 'involved was as to the lineman’s contributory negligence.

The modem uses of the subtle and highly dangerous energy, called electricity, in the industrial and commercial world are perhaps more numerous, and at least more common or widespread,- than the uses of' steam. Counsel for plaintiffs suggest that electricity' operates under known rules. It lights our streets and houses; it warms our cars; it runs our motive power, 'or is our'motive power in the operation of manufacturing establishments; it is used .in chemistry, and the arts in manifold' ways, 'sometimes -to reduce the' most' infusible substances by its great heat, coupled with its peculiar energy. It propels oúr cars with the speed of ,a l.oeqmotive and carries a whisper for. a thousand, [miles. Its-energy varies, and is - controlled; from that-which rings your door"bell'to that which executes yóúr criminals!'’ "'

It is harmless, indeed healthful, when but slightly present; it is deadly when of high degree or tension. Varying through all these degrees from harmless to deadly, it encircles the earth upon a mesh of wires and we cannot now get along without it. Hqw many years backward would civilization step, if we abolished electricity from the daily affairs of life. Its ,use is recognized and lawful. Its dangerous qualities are fully known by all, — as fully as, if not better than, the expansive power of steam. Shall those who store it, or use it, be held to be insurers of the safety of all persons who may come in contact with it in person or' property, or shall they be held to care, commensurate with its deadly qualities, as they are in the ease of steam?

For the reasons stated, we are inclined to think the charge in this case was warranted by the case of Langabaugh v. Anderson, supra.

Again, we are not at all sure that the jury was not right in bringing in a verdict for the defendants, because the plaintiffs failed to prove, by a preponderance of the evidence, that the fire originated in the manner claimed by theru. On this point, however, we are doubtful whether we would consider the verdict against the weight of the evidence, had the jury found the other way.

On the whole, we find no error in the record, and the judgment is affirmed.

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    January 13, 1906.]
    Jelke, Swing and Giffen, JJ.
    W. J. Gawne Co. v. Ellen Fry, Admx., et al.
    1. Question oe Negligence in Permitting Gas to Accumulate is eok Jubt, wecebe Evidence Shows Use oe Defective Appliances.
    In an action on account of the' wrongful death of an employe, caused hy an explosion of gas in the tunnel where the men were at work, there should he submitted to the jury the question of negligence on the part of the company in permitting the gas to accumulate, where testimony has been introduced tending to prove that the means employed for the expulsion of the gas were insufficient and defective, and that the defendant company knew, and the decedent did not know, of these defects.
    2. Question oe Scope oe Cebtain Employment is eob Juey.
    Whether it was an implied duty .of the foreman under the circumstances to attempt to repair a light connected with a wire charged with electricity, and was therefore acting within the scope of his employment when he produced a spark which caused the explosion, was also a question which should have been submitted to the jury.

      3. Charge that Employer is hot an Insurer op Employe’s Safety, and that He is not Liable por Injury Caused by Fellow Servant, not Erroneous.
    There being testimony tending to prove that the engineer, who was a fellow servant of the decedent, failed to operate the air' compressor i on the day of the accident, it was error to refuse to charge the jury that an employer of men is not an insurer of the safety of such men, and if he furnishes reasonably safe machinery and competent men to operate the same, and an accident happens to an employe by reason of the failure of fellow servants to operate such machinery, then the employer is not responsible for the injury.
    4. Refusal to Charge Doctrine op Assumed Risk is Erroneous.
    It was also error to refuse to instruct the jury in a special or in the general charge that the plaintiff assumed the risk of such injuries frocn accident as are incident to the nature of the work in which he was engaged, and against which the defendant could not by the exercise of ordinary care have protected him.
    5. Failure to Designate in Charge Particular Respects in which Defendants are Negligent is Error, when.
    Failure to point out in other parts of the charge the particular respects in which the defendants were alleged to be negligent, renders erroneous, under Balt. & O. Ry. v. LooJcwooú, 72 Ohio St. 586, the instruction that, “Before the plaintiff can recover, she must prove by a preponderance of the evidence that the city or the Gawne Company, or both, were negligent in at least some of the respects alleged in her petition, and that her husband was killed as a direct result of this negligence.”
    ¡6. Certain Charge Erroneous for Lack of Instruction that Each and Every Fact in Averment was Essential to Constitute Negligence.
    It was error in such a ease to state to the jury that the petition contained the allegation that the .ways and means for putting air into the tunnel and getting the gas out were insufficient, and known to be so by the-defendants, but unknown to the- deceased, without adding the instruction that each and every fact contained in this averment was essential to constitute negligence.
    [Syllabus by the court.]
    ERROR to Hamilton common pleas court.
    Cohen & Mack, for plaintiff in error.
    Robertson & Buchwalter and Dempsey, Mallon & Vordenberg for defendants in error.
   GIFFEN, J.

The plaintiff below averred in her second amended petition that the defendants at the time of the accident complained of were constructing a conduit or tunnel to supply water to the western pumping station in’Cincinnati, Ohio; that all of said defendants had full knowl■edge of the inherently dangerous character of the work by reason of "the presence of an explosive gas, of which the plaintiff’s decedent had no knowledge. That all the ways and means adopted for the admission <of air and expulsion of the dangerous explosive gas were insufficient and defective and known to be so by the defefidants,' but wholly unknown and not communicated 'to the plaintiff’s decedent. That on the fifth day of July, 1901, the. decedent, who was in the employ of the defendants, was ordered to work in the end of said tunnel near Torrence road and Eastern avenue, under a foreman named McLaughlin. That while decedent was so employed,' the foreman having charge of said, work negligently and carelessly undertook to repair a light on a wire -charged with electricity, and in so doing caused some metallic substance to come in contact with the wire used for lighting said tunnel, generating a spark of fire, when, without warning or notice, the explosion occurred which caused the death of the decedent.

The W. J. Gawne Company, the only defendant against whom the jury returned a verdict, admitted in its answer that it was engaged in the work of constructing a tunnel under a contract with' the commissioners of the waterworks. That, on the day mentioned, James O’Brien was • employed by it, and that an explosion occurred resulting in his death; and denied each and every other allegation contained in the second amended petition; and as a second defense, alleged that his death was. caused by reason of the negligence and carelessness either of said James O’Brien himself or of some other person under circumstances: for which and for whose acts the defendant was in no way responsible.

The first alleged error to be considered is the overruling of the motion at the conclusion of plaintiff’s testimony, and also a± the conclusion of all the testimony to arrest the ease from the jury and render judgment for the defendant.

Counsel for plaintiff in error claim that it was incumbent upon the plaintiff to establish the following three propositions as the essential allegations of the petition: First, that the accident was caused by the negligent accumulation of gas; second, that the Gawne Company knew of this state of facts, or could have known it by the exercise of ordinary care; third, that "deceased did not know, or could not by the exercise of ordinary care have known of this state of ‘facts.

Counsel has overstated the first proposition, because if gas was permitted to accumulate through negligence, and caused the accident, that of itself would give a cause of action; but as we understand the allegations of the petition, the actionable negligence in this particular consisted in the Gawne ’Company’s .knowing of the existence of the explosive gas and the decedents not knowing it. . , ,

The negligence charged ,in the second amended petition may be classed as follows: First, the presence in the tunnel qf an explosive-gas with the knowledge of the Gawne Company, and without the knowledge of the decedent; second, the defective means employed for the expulsion of the gas which were known by the Gawne Company to be defective, and unknown to -be such by the decedent; third, the negligent act of the foreman in attempting to repair the electric light.

Although there is nothing in the testimony to show that the defendant Gawne Company or the decedent knew of the presence of the explosive gas just prior to the accident, yet it does appear that each of them knew that the existence of such gas might reasonably be anticipated during the progress of the work.

There is testimony tending to prove that the means employed for the expulsion of the gas were insufficient and defective; that the defendant company knew of such defects while the decedent did not. It was incumbept, therefore, upon the court to submit this issue of negligence to the jury.

Upon the other ground of negligence, the evidence is undisputed that McLaughlin was the foreman in charge of the work, having authority and control over the decedent. It is disputed however that he was acting within the scope of his employment when he undertook to repair the electric light. There is testimony, however, tending to prove that the act done was within the scope of his employment, and it, therefore, became a question to be submitted to the jury under proper instructions from the court, and even though the jury found that McLaughlin was not acting within the scope of his employment, and that his act precipitated the explosion, the defendant company would nevertheless be liable under the second ground of negligence above stated, if the jury so found, for the reason that the two acts of negligence, that of the company and of the foreman, were concurrent in causing the accident.

Counsel further claim that the proof shows that the accident in question .was not caused by any culpable neglect for which this defendant is answerable, inasmuch as the gas became explosive only when the marsh gas was mingled with air in the proportion of 5 to 13 per cent of marsh gas and 95 to 87 per cent of air, there must be a time during the process of expelling the gas when it would become explosive, and that, therefore, the defendant could not provide against the accident. It is sufficient to say in answer to this argument that the period when the gas is explosive would be reduced thereby to a minimum and the chances of an accident would be but slight.

It is further contended that the evidence is undisputed that the act of the foreman was not within the scope of his employment and unauthorized by the master, because the company had employed one Delaney, an electrician, to attend to the electric lights and make the necessary repairs, and assigned no such duty to the foreman. It does not appear in the testimony that the foreman was informed of the duties of the electrician. If, therefore, it may be fairly implied from the work assigned to the foreman, that it was his duty to repair the electric light in case qf an emergency, then it would be immaterial what positive instructions or authority the company had given to the electrician. The foreman was placed in charge of the decedent, with three other workmen, and directed to remove the earth from the tunnel, and during the progress of the work, the foreman accidentally broke one of the glass bulbs, and while undertaking to replace it with a new one, used a metal rule to extract the glass, thereby causing the spark which resulted in the explosion. The foreman at the time was undertaking that which was necessary for the prosecution of the work assigned to him, and unless it was necessarily dangerous and known by him to be such, or unless he knew /that the electrician alone was authorized to make such repairs, or unless he was positively ordered not to make such repairs himself, he was justified in assuming that such work was one of the implied imposed upon him. The court properly overruled the motion to arrest the case from the jury.

The next alleged error is the refusal of the court to give certain special instructions requested by the defendant, the W. J. Gawne Company. The record discloses that:

“After the argument the W. J. Gawne Company, by its attorney, requested the court to give each of the instructions hereinafter set forth and lettered from ‘A’ to ‘K’ respectively, as part of the general charge.”

If this request is to be construed literally as requiring the court to give each of the instructions unconditionally as a part of the general charge, the court correctly refused the same, for the reason that there is no rule of law requiring a court to adopt the language of coun.sel as a part of its general charge, but we apprehend that this point will not be insisted upon, not having been referred to in argument

Special charge marked “G,” is as follows:

“The jury are instructed that an employer of men is not as insurer of the safety of such men, and that if said employer furnishes reasonably safe machinery and competent meo to operate the same, and an accident happens to an employe by reason of the failure of fellow servants to operate such machinery, then the employer is not responsible for such injury.”

There 5s testimony tending to prove that on the day of the accident, the engineer failed to operate the air compressor. If by reason' of such failure the accident occurred, the company would not be liable-for the reason that the engineer having no authority or control over-the decedent, was his fellow servant. The equivalent of this instruction was nowhere given in the general charge, and the refusal' to give.; it as requested, was prejudicial error.

Special instruction “H,” is as follows:

“The jury was instructed that plaintiff assumed the risk of such injuries from accident as are incident to the nature and character of the work he was engaged in at the time in question and against which defendant, the W. J. Gawne Company, could not, by the exercise of ordinary care, have protected him.”

We are of the’ opinion that this instruction correctly states the law and unless it was substantially given in the general charge, its refusal by the court was erroneous.

The only part of the general charge which touches upon the question of the assumption of risk, is as follows:

“You must determine whether or not O’Brien knew that there was a dangerous state of affairs there when he went into the tunnel on July 5. If he did, he assumed the risk of that state of affairs; but he did not assume the risk of his boss negligently causing an explosion, if you find this to be the case.”

This charge is limited to the state of affairs existing when he went into the tunnel, and can have no application to what might occur or exist after he went into the tunnel. It might (also be construed to mean a state of affairs existing within the tunnel alone, and have no reference to the compressor and other appliances provided for the purpose of removing such dangerous state of affairs. We think this special charge should have been given.

The last clause of that part of the general charge above quoted is objectionable in stating that he did not assume the risk of his boss negligently causing the explosion, whether or not he was at the time acting within the scope of his employment.

In another part of the charge, however, the court submitted to the jury the question whether the act done was within the scope of his employment. We think that by considering the two clauses together, the jury would fairly infer the meaning to be, that the decedent did not assume the risk of his boss negligently causing the explosion while acting within the scope of his employment.

The general charge contains this clause:

“Before the plaintiff can recover she must prove by a preponderance of the evidence that the city or the Gawne-"Company, or both, were negligent in at least some of the respects alleged .in her petition, and that her husband was killed as the direct result of this negligence.”

This charge comes within the rule announced in the 'case of the Balt. & O. Ry. v. Lockwood, 72 Ohio St. 586, unless in other parts of the charge the court pointed out the particular respects in which the defendants were alleged in her petition to be negligent.

In the second paragraph of the general charge, the court refers to the allegations of the petition setting forth the several acts of negligence, but fails to. state what particular allegations constitute a separate and distinct act of negligence. The court charged them substantially that the petition alleges that the city and trustees knew, or ought to have known, that pockets of gas were found in the tunnel, which they knew, or ought to have known, was explosive when mixed with air. But this of itself did not constitute negligence unless the decedent did not know of the existence of the gas, that it was explosive, and had not equal means with the master of knowing it.

The court further stated, in substance, that the petition contained the allegation that the ways and means for putting air into the tunnel .and -getting the gas out, were insufficient and known to be so by the •defendants, but unknown to O’Brien, the deceased. The court failed to instruct the jury that each and every fact contained in this averment was essential to constitute negligence, and the jury may well have inferred that/the failure to provide sufficient ways and means for expelling, the gas in itself constituted negligence independent of the knowledge of the defendants or of the decedent.

The only other act of negligence referred to by the court in the general charge is that of the foreman in undertaking to repair the electric light, so that the jury’s attention was really called to only two distinct grounds of negligence, whereas in the paragraph quoted from the general charge, the jury must have inferred that more than two .grounds of negligence were charged in the petition. The charge of the court on the subject of negligence was therefore erroneous and prejudicial to the rights of the plaintiff in error.

The court admitted testimony to the .effect that the defendant after the accident caused a register to be placed upon the air compressor, for the purpose of showing the number of revolutions per minute. This was incompetent evidence,-and could only serve to mislead the jury to believe that the absence of the register before the accident was a negligent omission on the part of the defendant.

The admission in evidence of tbe petition in the injunction suit brought' by the city against the board of .trustees of the waterworks was incompetent as an admission, either of the city or of the defendant, the Gawne Company, but inasmuch as the court limited it to the case against the city only, it was not prejudicial to the defendant, the Gawne Company.

For the reasons above stated, the judgment is reversed, and cause .remanded for a new trial.

Jelke and Swing, JJ., concur.


text:
    CROSSINGS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court.
    January 13, 1906.]
    Jelke, Swing and Giffen, JJ.
    Cincinnati, H. & D. Ry. v. Lipman Levy, Admr.
    1. Erroneous Charge as to Looking and Listening at Crossing.
    A traveler is never wholly absolved from using his faculties to avoid danger, and in an action growing out of an accident at a grade crossing, a charge to the jury is erroneous which makes the railroad com-' pany liable on account of the negligence of the watchman in failing to signal danger, independent of the fact that the deceased and her husband, who was riding with her, depended on the watchman more than on their own faculties to discover whether a train tfas coming.
    2. Question of Negligence of Decedent in Regard to Looking and Listening is for Jury.
    In such a case the extent to which the decedent and her husband used their senses to discover whether a train was approaching, or the degree of negligence, if any, of which they were guilty, are questions for the jury.
    3. Burden of Proof on Plaintiff where His Testimony Raises Presumption of Contributory Negligence.
    While it is true the burden of proving contributory negligence is on the defendant, an exception arises to the rule where the plaintiff’s own testimony raises a presumption of contributory negligence.
    [Syllabus by the court.]
    ERROR to Hamilton common pleas court.
    M. R. Waite, for plaintiff in error.
    Johnson & Levy, for defendant in error.
   GIFFEN, J.

This action, Cincinnati, Hamilton & Dayton Railway Company v. Lipman Levy, Administrator De Bonis Non of the Estate of Florence S. Taylor, Deceased, arose from an accident that occurred at a railroad crossing where a flagman was maintained. Dr. Taylor, the husband of the deceased, testified that he had frequently observed a flagman seated in his box when no train was approaching the crossing; that on the occasion of the accident, he saw no flagman on the track; that the door of the flagman’s box faced the east; that he approached the track from the west, his horse moving on a slow trot; that his view of the track in the direction, from which the train was running was-, obstructed.

The jury returned a verdict in favor of the plaintiff for the sum of $3,500, which the court reduced to the sum of $3,000, and rendered judgment therefor.

It is claimed that the co.urt erred in overruling the motion to arrest the case from the jury at the conclusion of plaintiff’s testimony. In the case of the Cincinnati, Hamilton & Dayton Railway Company v. Walter F. Taylor, growing out of the same accident, this court held upon a like motion that the court properly overruled a similar motion. The evidence in this ease is substantially the same, and a like ruling will be made in this case.

It is further claimed that the court erred in giving the following instruction in its general charge:

“If the flagman was absent from his place of duty, or was not giving any signal or warning when she attempted to pass over the crossing, it is not contributory negligence on her part to drive through without stopping to look or listen, though the view is obstructed, in order that the cars could have been seen a few feet away.”

It will be observed that the decedent was not relieved by this charge of the duty of looking and listening but only of the duty of stopping for that purpose. It is not entirely clear what is meant by “the absence of the flagman from his place of duty,” but' inasmuch as the testimony discloses that the flagman was in the box at the side of the crossing, it must be inferred that the court intended to state only if the flagman was not on the crossing or not visible, so that any signal given by him» could be seen by the decedent or her husband. Applying the charge to the evidence in the case, there is no error in giving it. See the case of Railway v. Schneider, 45 Ohio St. 678.

The following paragraph in the general charge is also claimed to be erroneous:

“If you find from a preponderance of the evidence that the decedent knew there-was a flagman at this crossing, that he was absent from his place of duty upon this occasion, or failed to give the signal of danger, and she had no other knowledge of the. danger,. the railroad. company would be liable providing you find from the evidence the collision was the proximate cause of her death.”

This charge makes the railroad company liable for the negligence-of the flagman provided the decedent knew that a flagman was maintained at this crossing, and had no other knowledge of the danger, independent of whether she or her husband looked or listened for an ap- ■ proaching train. In the former case we said:

“A traveler is never wholly absolved from using his faculties to-avoid danger, and what would or would not amount to .the exercise of ordinary care depends upon the circumstances of each case, and is - properly one of fact to be determined by the jury.”

In the case of Tyler v. Railway, 157 Mass. 336 [32 N. E. Rep. 227], the last proposition of the syllabus is as follows:

“If it is customary for a railroad corporation to have a flagman! at a crossing at grade of a highway by the railroad, and he is absent,, this does not excuse a traveler on the highway from looking to see if a train is coming before he attempts to cross the railroad tracks, where there is no obstacle to prevent his seeing.”

And on page 340, the court say:

“If it is customary to have 6ne [flagman] at a crossing, and he-is absent, a traveler has a right to rely to some extent on this fact; but. this does not excuse his not looking at all to see if a train is coming,, when there are no obstacles to prevent his seeing if he looks.”

In the case of Cadwallader v. Railway, 128 Ind. 518 [27 N. E. Rep. 161], the syllabus is as follows:

“One who approaches a railroad crossing with which he is-familiar, and attempts to cross without looking and listening for approaching trains, where it is possible to do so, is guilty of such contributory negligence as precludes him from a recovery if he is injured,, although the crossing was supplied with a flagman, and the flagman did. not give notice of‘the approach of danger. A person attempting to cross should not have the right to assume, from that circumstance, that no danger existed, and enter upon the railroad track without looking. Had the flagman done anything to induce the appellant to attempt the crossing at the time she was hurt, or anything to throw her off her guard,, then the question of her negligence would have been a question for the jury.”

It does not appear from the testimony that the doctor or his wife wholly failed to use their- senses to ascertain whether a train was approaching. The extent to which they did use them, or the degree of negligence, if any, in not using them, were questions for the jury which were excluded by' that part of the general charge last quoted. It seems, therefore, that the charge was clearly erroneous and prejudicial.

The court also charged that the burden of proving contributory negligence is on the defendant. While this is true ordinarily, it is not so when the plaintiff’s own testimony raises the presumption of contributory negligence. We think in this case the court should have qualified the' charge in this respect. The evidence was sufficient to show that death resulted from the accident.

It is also claimed that the testimony of the actuary pertained to the expectation of Doctor Taylor’s life alone, whereas the joint expectation of the doctor and his wife must control. It appears, however, from the bill of exceptions, at page 51, that the actuary did give the expectation of the joint lives of a woman forty-five years old and a man eighty-four years old. We think the doctor was qualified to testify as to the value of his wife’s services, although we1 may not agree with him in the amount fixed, nor were the jury bound by it.

We are not disposed to disturb the judgment upon the ground that the damages are excessive, althonugh it is not free from doubt.

Judgment reversed and cause remanded for a new trial.

Jelke and Swing, JJ., concur.


author: JELKE, J.

text:
    DIVORCE — COURTS—PARENT AND CHILD.
    [Hamilton (1st) Circuit Court,
    November 15, 1905.]
    Jelke, Swing and Giffen, JJ.
    Graviess v. Graviess.
    1. Reviewing Court will not Disturb Order as to Custody of Children Except for Grave Mistake or Abuse of Discretion.
    In divorce proceedings the care and custody of children is a question addressing itself to the sound discretion of the trial court, and when this discretion has been exercised, a reviewing court will not interfere with or disturb an order with reference thereto, unless there has been a serious error or an abuse of discretion.
    2. Continuing Jurisdiction of Court as to Children of Divorced Parents cannot be Used Merely to Reopen Former Adjudication.
    A trial court has a continuing jurisdiction as to the care and custody of ■the children of divorced parents, but it is not authorized to reopen questions relative thereto previously submitted and adjudicated, unless a substantial change has taken place in the condition- of the parties, which requires a modification of the former order. (a(v..* • ).

      3. Wealth of Relatives must not Conteol Decision of Coubt as to Custodt .of Children.
    Jn determining questions relative to tile custody of children of divorced parent's, the wealth and prosperity of relatives should 'not be given an undue and exaggerated consideration and will not control as against the interests and rights of. the mother, especially when it appears that such relatives owe no duty to the children.
    ’{Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    E. T. Brown, for plaintiff in error.
    E. M. Ballard, for defendant in error.
   JELKE, J.

This is a proceeding in error prosecuted to an order of the court of common pleas, made January 17, 1905, modifying a former decree of that court as to the custody of children.

On November 26, 1901, the court of common pleas decreed a divorce between George F. Graviess and Elizabeth Graviess for the aggression of the husband, and in that decree confided the care, custody, education and control of the children, Helen, Alice and Edna, to the wife. In violation of this order said George F. Graviess took the children out of the jurisdiction of the court but soon thereafter returned the child, Helen, to its mother. In January, 1905, said George F. Graviess having returned to and within the jurisdiction of said court of common pleas, was brought before that tribunal for contempt, and fined and punished therefor; and the matter of the custody and care of the minor children came on for consideration under a motion to modify the former decree. It is error to the order made upon this motion that is under consideration here, 'and the chief ground of error alleged is, that said order and decree is contrary to, and against, the weight of the evidence introduced at this latter hearing.

The care and custody of children in divorce proceedings is a continuing matter in the trial court, and one which addresses itself to the sound discretion of that court. When that discretion is exercised, a reviewing court is very loath to disturb or interfere with any order. It is said that such order will only be inquired into on a charge of abuse of discretion. While we do not like to say in this case that the discretion vested in the trial court has been abused, we are impressed by the record that a grave mistake has been made. The continuing jurisdiction of a court of common pleas in the matter of the custody of •children, does not mean that that court may change its former orders and decrees at any time because the court may have changed its mind. This continuing jurisdiction to modify former orders is not to be used for the purpose of a rehearing of the matter theretofore submitted and adjudicated, but is only to be called into exercise when a substantial change has taken place in the condition of the parties, which would call for, and require, a modification of the former order. See case of Pfau v. Pfau, 4 Circ. Dec. 281 (8 R. 87) ; opinion per Smith, J., of this court.

Again, at this latter hearing, it seems to us that an undue and exaggerated consideration was given to the wealth and affluence of the married sister of the said George F. Graviess. The mere fact that & through the prosperity of relatives and connections, who owed the said George F. Graviess no duty, and absolutely no duty to these minor children, superior advantages could be afforded them, furnishes little or no reason for taking them away from the mother to whose care they had been confided. Of course material advantages may be somewhat considered, but they are not controlling, and the mother’s care and influence in this case, we think, should have outweighed them.

We are therefore of the opinion that the order of January 17, 19.05, should be reversed, and this cause remanded to the court of common-pleas for further examination and consideration.

Swing and Giffen, JJ., concur.


text:
    APPEAL — STATUTES.
    [Hamilton (1st) Circuit Court,
    November 14, 1905.]
    lelke, Swing and GifCen, JJ.
    John H. Gibson, Treas. v. Griffin T. Miller et al.
    1. Act Enlarging Right of Joinder may Apply to Pending Actions.
    An act giving increased powers to a county treasurer as to joinder in actions for the sale of realty for taxes may be made applicable to all actions pending, wherein judgment has not been rendered.
    2. Act Changing Remedy Applies to Pending Case Subsequently Appealed.
    An appeal operates to vacate the judgment of the lower court, and a cause will stand in the appellate court as a pending action without judgment; hence Rev. Stat. 1104 (Lan. 2451), which relates to the matter of joinder in suits for the sale of real estate for delinquent taxes, will apply to action» pending at the time of the enactment of such law and later appealed.
    Appeal from Hamilton common pleas court.

      W. F. Chambers, for plaintiff.
    E. R. Donahue, for defendant.
   JELKE, J.

This action was begun in tbe court of common pleas by filing a petition on November 12, 1903, against Caroline B. Donohue et al., for the sale of certain real estate on account of unpaid taxes and assessments under an act entitled, “To amend Sec. 1104 Rev. Stat. of Ohio, passed April 4, 1902,” (95 O. L. 93).

On January 22, 1904, Caroline B. Donohue filed a demurrer:

“Now comes Caroline B. Donohue, one of the defendants herein, and demurs to the petiton upon the following grounds:
“1. Separate causes of action against several defendants are improperly joined.
“2. There is a misjoinder of parties defendant.
“3. The petition does not state facts sufficient to constitute a ■cause of action.”

On April 2, 1904, said demurrer was overruled by the following entry:

“This cause coming on to be heard on the demurrer to the petiton hy Caroline B. Donohue, the court on consideration overrules the same; ■to all of which defendants except; twenty days’ time given to file answer. ’ ’

On August 4, 1904, judgment and decree for sale were entered ■against said Caroline B. Donohue, to which she excepted and gave notice of appeal. The docket also shows: “August 5, 1904, notice of intention to appeal filed; August 5, 1904, entry giving notice of appeal and fixing bond in the sum of $500;” which bond was subsequently given, and appeal duly perfected.

We are of opinion that the common pleas court erred in overruling •the.demurrer of the said Caroline B. Donohue under the law as it stood when the petiton was filed and when the demurrer came on for hearing and was passed upon by said court. We think that there were separate causes of action against several defendants improperly joined, and that there was a misjoinder of parties defendant.

On April 25, 1904, said Rev. Stat. 1104 .(Lan. 2451), as amended in 95 O. L. 93, was again amended, and the following paragraph inserted :

“And in proceedings hereunder the county treasurer may join in -one action all or any number of lots or lands, but the decree shall be rendered severally or separately, and any proceedings may be severed in the discretion of the court for the. purpose of trial-, er^or .or appeal, where an appeal is allowed, and the court shall make such order for the payment of costs as shall be deemed equitable and proper.” '

And Sec. 3:

“This action shall take effect and be in force from and after its passage, and shall apply to all existing causes of action and pending actions.”

Revised Statutes 79 (Lan. 98) provides:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or .repealing act. ’ ’

Since said cause came into this court on appeal, counsel for Caroline B. Donohue has again renewed and pressed the demurrer which the court below had overruled, and now contends that the amendment of April 25, 1904, which provides for and permits the joinder complained of, cannot constitutionally be made to apply, inasmuch as this cause went to judgment below, and that the said Caroline B. Donohue has a vested right in having her rights and remedy determined under the law existing as it did prior to April 25, 1904. Counsel for Caroline B. Donohue rely on the ease of Gompf v. Wolfinger, 67 Ohio St. 144 [65 N. E. Rep. 878], the third proposition of the syllabus being as follows:

“A judgment which is final by the laws existing when it is rendered cannot constitutionally be made subject to review by a statute subsequently enacted; and the act of October 22, 1902, to amend Sec. 6710-Rev. Stat. [Lan. 10301], being incapable of a retrospective operation, does not confer upon this court jurisdiction to review judgments which the circuit court had rendered prior to its passage and which were not subject to review under the provisions of the act of May 12, 1902.”

There is no doubt that a judgment which is final -by .the laws existing when it is rendered, is an end to the- controyersy, and no> legislative act can operate retrospectively to give an appeal or petition in error in derogation .of such .final judgment. The party - in whose favor, such .judgment, is rendered has a vested interest and any legisla-, tive act seeking to impair it would, .be unconstitutional; and, void. This case, however, presents a different situation. The matter of joinder is-a matter relating purely to tbe remedy and dues not affect any of tbe substantive rights of the parties, but merely the question of how, and when, and in what company those rights shall be worked out and determined. ■ '

The act making such joinder possible in this case was passed long prior to the rendition of the judgment appealed from; at the time the act of April 25, 1904, was made applicable to pending actions there was no judgment. This act of April 25, 1904, removed the objection, because of which we think the common pleas court should have sustained the demurrer of April 2, 1904.

Again, the appeal which was duly prosecuted under laws existing and unchanged in that regard from the time of the filing of the petition until the present consideration, if entertained by this court, entirely vacated and wiped out the’ judgment of the court of common pleas, and the cause stands in this court as a pending action, without any judgment, and we see no reason why under the provisions of Rev. Stat. 79 (Lan. 98), and the special provision of See. 8 of the act of April 25, 1904, this latter law should not be applied to the matter of joinder which pertains purely to the remedy. If we felt that the act of April 25, 1904, affected any judgment in which Caroline B. Donohue had a vested interest, we would feel that the case of Gompf v. Wolfinger, supra, would apply, but the judgment and decree below were against Caroline B. Donohue, and it' was her bond and appeal which has suspended the same, and why she should seek to use this judgment, which she desires annulled,' and a decision contrary to which she seeks to obtain by her appeal in these proceedings, as a valid and substantial barrier to the application of an amendment touching the remedy, and claim a vested interest thereunder, we cannot see.

We are therefore of opinion that the case of Gompf v. Wolfinger, supra, does not apply and that the amendment of April 25, 1904, makes proper the joinder which was improper under the law of April 4, 1902.

Swing and Qiífen, JJ., concur.


author: PER CURIAM.

text:
    COSTS AND FEES — JUSTICES OF THE PEACE.
    [Hamilton (1st) Circuit Court,
    December 20, 1905.]
    Jelke, Swing and Giffen, JJ.
    Joseph Schott v. Carl Wehner et al.
    Dosts op Appeal fbom Justice’s Judgment Assessed on Plaintiff Appealing FBOM ERRONEOUS ASSESSMENT OF COSTS ON HlM IN MAGISTRATE’S COUBT, WHEN.
    The assessment of costs by a justice against a successful plaintiff is erroneous in tbe absence of evidence of a tender or offer to confess judgment on the part of the defendant; and a reviewing court will enter judgment in favor of plaintiff for the amount due with his costs in the magistrate’s court, but will, under the provisions of Rev. Stat. 6591 (Lan. 10173), assess on him the costs incurred in prosecuting the appeal.
    ERROR to Hamilton common pleas court.
    Powell & Smiley, for plaintiff in error.
    Reemelin & Hosbrook, for defendant in error.
   PER CURIAM.

Inasmuch as there was never a sufficient legal tender nor any offer to confess judgment, the magistrate erred in assessing the costs against the plaintiff. He had no discretion in the matter, and the costs, as of course, followed the judgment in the absence of tender duly and legally made, or at offer to confess judgment. This being so, the plaintiff had two ways open to him of securing his rights, either by appeal or proceedings in error.

If he took an appeal, he did so in the face of Rev. Stat. 6591 (Lan. 10173), as he could not hope to recover a judgment greater in amount than that for which judgment was rendered, besides the costs and the interest accruing thereon. This being so, the court of common pleas was bound to charge the costs on appeal to the plaintiff. As the answer set up in the pleadings on appeal discloses neither a tender nor an offer to confess judgment, this being an action for money only, the plaintiff was entitled as of course under Rev. Stat. 5348 (Lan. 8874), to recover all costs properly incurred. The.proper judgment for the court of common pleas to have entered herein was a judgment in favor of the plaintiff for the amount of the check, charging plaintiff with the costs incurred in prosecuting the appeal and awarding to plaintiff all of his costs incurred in the magistrate’s court. This matter is controlled entirely by statute, and there was no room for the exercise of discretion. The court of common pleas erred, and the judgment will be reversed, and cause remanded with instructions to the court of common pleas to enter up judgment as above indicated.


author: VOLLRATH, J.

text:
    CRIMINAL LAW — MASTER AND SERVANT.
    [Allen (3d) Circuit Court,
    November Term, 1905.]
    Norris and Vollrath, JJ.
    John D. Blakely v. Greer et al.
    •Corpoeation Liable for Wrongful Shooting by its Agent within Scope op his Employment.
    A petition which alleges that a railway station agent had been furnished with a revolver by the companies employing him, for the purpose of protecting their grounds and buildings from unlawful intruders, and that such agent mistaking the plaintiff, who was on the railway grounds on lawful business, for a trespasser, wrongfully and negligently shot and injured him, states a good cause of action against such companies, as the negligent act of the servant was clearly within the scope of his authority.
    [Syllabus approved by the court.]
    Error to Allen common pleas.
    (Names of counsel not furnished.)
   VOLLRATH, J.

The plaintiff in error filed his amended petition in the common pleas court against Hayes Greer, the Lake Erie & Western Railway Company, the Western Union Telegraph Company and the United States Express Company, and avers in substance that the defendant, ■Greer, is the servant and agent of the other defendants and was such ■on the night of December 13, 1901, in the common office of said defendants in the passenger depot building of said railway companies at the village of Bluffton, Ohio, and engaged within the scope and line of his duties, as such agent in charge of said office, etc. That prior to, and at, the time aforesaid, said Greer as such servant and agent aforesaid, had been, and was, armed by the direction, and with the consent, of said last named defendants with a deadly weapon, to wit, a loaded revolver, which had been furnished to said Greer by the other defendants above named, for the protection of their said servant and their property interests entrusted to his care. That Greer at said' time and long prior thereto, was of a very nervous and excitable nature* or disposition and reckless in his conduct and an improper and excitable person or servant to be so entrusted and charged, — all of which facts were known, or could have been known, to said defendant companies but were all unknown to plaintiff. That, notwithstanding the •said facts and knowledge and notice, said defendant companies left-said depot building and common office, etc., in charge of said Greer, and armed him, and permitted him to be armed, and assented to his being armed, with a deadly weapon and in the night season and in said office and station and for the purpose aforesaid.

Said depot, building, and passenger room therein were lighted and-the doors thereof unlocked in the night season and open for business, and that on thé night of said December 13, 1901, while the said Hayes Greer, as such servant and agent of said defendant companies, was engaged in the line and scope of his duties 'and authority for said defendant companies, in charge of their said .common office and while acting for said defendants in transacting their business, caring for, and' looking after, and protecting, their property interests, plaintiff' . entered said passenger depot on lawful business, holding a lantern in one hand, and- that just after entering the door of said passenger depot for the purpose aforesaid while in the act of crossing the same, said defendant, Hayes Greer, then in said building and engaged as aforesaid and while acting for said defendants, within the scope of his authority and line of business for said defendant companies and as their agent and servant, suddenly, without warning or notice, recklessly, wrongfully and negligently, discharged said loaded revolver at the plaintiff, shooting and seriously wounding the plaintiff in the left shoulder ánd arm and causing severe injury and pain.

Plaintiff claims to have suffered great loss and to be permanently-injured. Plaintiff further claims that said injury thus caused was so caused by the joint and concurring negligence of each of said defendants and asks for judgment therefor in the sum of $20,000.

To this amended petition, a general demurrer was interposed by the defendants, which demurrer was sustained by the court of common pleas and plaintiff not desiring to plead further, said amended petition was dismissed as to said defendant companies at- the costs of the plaintiff. Judgment was rendered accordingly and this proceeding is prosecuted here to reverse said "judgment of the court of common pleas.

It is claimed by the plaintiff in error that the common pleas court erred in sustaining said demurrer and we think that this contention is well founded. The petition avers that the deadly weapon with which the mischief was done was given to the defendant, Greer, by said defendant companies for the purpose of being used against improper intruders or, in other words, to protect said building and business in-térests. Presumably this meant robbers, or burglars, or anyone that might seek illegally to trespass upon the property rights of the defendant companies. The revolver was given to Greer to be" used for the very purpose for which he thought that he did use it, to wit, to shoot unlawful intruders.

That Greer made a mistake in directing his attack against Blakely does not alter the material facts in the case, that this gun had been entrusted to Greer to shoot with- and to be used/ if necessary,' against human beings and, in the nature of things, the determination of the necessity for such use was left by said company to the judgment of Raid Greer. He exercised that judgment when he fired upon Blakely, He was aeting within the scope of his authority. He was authorized' to shoot if occasion required it, according to his judgment. His judgment was at fault. This cannot be charged to Blakely but must be charged to Greer and his employers. This principle is illustrated more’ or less fully in most of the authorities cited by counsel in this case. In the ease of Little Miami Ry. v. Wetmore, 19 Ohio St. 110 [2 Am. Rep. 373], it is held that a master is not responsible for the wrongful act of his servant unless that act be done in execution of the authority, expressed or implied, given by the master.

In that ease a baggage master of the railroad company being angered by abusive language of Wetmore, picked up a hatchet and struck him. It was held that such act was not authorized by the master. The hatchet was furnished for a wholly different purpose. The hatchet was not furnished to strike people with, nor' as a means of defense or protection. In the case at bar, however, the revolver was furnished to be used as Greer did use it, subject only to a condition dependent upon the judgment of Greer, namely, that the person shot at was an unlawful intruder and Greer’s mistake of judgment in this matter must be chargeable to his employers.

In the case of Stranahan Bros. Catering Co. v. Coit, 55 Ohio St. 398 [45 N. E. Rep. 634], the same principle is laid down. See also the case of the Nelson Business Col. Co. v. Lloyd, 60 Ohio St. 448, [54 N. E. Rep. 471; 46 L. R. A. 314; 71 Am. St. Rep. 729], Judge Minshall in deciding the case uses the following language, page 454:

“Notwithstanding some earlier cases, it is, we think, clearly settled that the master is liable for the willful, or even malicious, as well as negligent acts of a servant, done in the course of his employment and within the scope of his authority.”

The same principle is laid down in the case of the Lima Ry. v. Little, 67 Ohio St. 91 [65 N. E. Rep. 861], a case which went up from this county. It is useless to multiply authorities. The sole question under the pleadings to be determined in this case is, was Greer at the time he fired the shot in the service of, and acting for, his master and within the scope of his authority? As indicated above, it is the judgment of this court that he was so acting. Under these circumstances we hold that the court erred in sustaining the demurrer to the amended petition and for this reason the judgment of the court of common pleas is reversed at the costs of the defendants in error. The demurrer is overruled, judgment for costs and execution awarded and cause remanded for execution and further proceedings.

Norris, J., concurs.


author: LAUBIE, J.

text:
    MUNICIPAL CORPORATIONS — RAILROADS—STREETS.
    [Summit (8th) Circuit Court,
    June, 1905.]
    Marvin, Winch and Laubie, JJ.
    '(Judge Laubie of the seventh circuit, sitting in place of Ju¡dge Henry.)
    Akron & Cuyahoga Falls Rapid Transit Co. v. Erie Ry.

      t. Agreement to Pay fob Maintenance of Flagman by Railway if Latteb Required so to do, not Enfokcible if Done under Mutually Advantageous Agreement with Municipality.
    Under a contract by which a traction company agreed to pay all the costs and expenses incurred by a railway company in maintaining a flagman “lawfully required” by the public authorities at the intersection Of their tracks, such traction company will not be liable where the railway company placed a flagman at the crossing under a contract with a village, by which the municipality agreed to repeal a certain ordinance restricting the speed of trains.
    2. Agreement by Traction Company to Maintain Flagman at Railway Crossing, Void for Want of Consideration, if Nothing Granted but Right to Cross.
    A traction company has the right to lay and maintain its tracks at the grade of a street and across the track of a railroad by virtue of its franchise, without liability to the railroad company; an agreement, therefore, by such traction company to pay the costs and expenses of maintaining a flagman at their crossing without further compensation therefor than the right to cross the railway’s tracks is void for want of consideration.
    3. Construction, etc., of Traction Company’s Tracks not a New Servitude.
    The construction and maintenance of tracks by a traction company along municipal streets under authority legally granted by the municipality will not impose a new or additional burden upon the abutting property for which the owner of the fee can obtain compensation when the tracks are laid along the center and at the grade of the street.
    4. If Municipality Annexes County Road, Title Vests Therein in Trust.
    When a municipal corporation annexes territory embracing a county road, the title in fee to that part of the road vests ip. the municipality in trust for the public.
    [Syllabus approved by the court.]
    Error to Summit common pleas court.

      Rogers, Rowley, Bradley & Rockwell, for plaintiff in error.
    Tibbals & Frank, for defendant in error.
   LAUBIE, J.

As one ground for tbe reversal of this ease, it is alleged that the trial court erred in refusing to admit the evidence offered by the plaintiff in error, the defendant below, to prove its defense to the first and second causes of action of the second amended petition — in' substance, that such railroad company for its own purposes, advantage and profit, had itself applied to the Barberton village council and the commissioner of railroads, for the order to station a flagman at the crossing, and agreed to pay the expenses thereof, if such order would be issued.

In the opinion of this court this evidence was competent, as was substantially held by this court at a former hearing, and should have been admitted.

The contract sued upon provides that the traction company (conceding it to be bound by said contract as the successor of the second parties thereto) should pay “all costs and expenses which may be lawfully required of the parties hereto by the authorities of said village of Barberton or of said state of Ohio * * * for maintaining flagmen at said crossing.”

This clearly refers to, and includes, only independent action primarily instituted and taken by such- village or state, and not such costs and expenses as are incurred by such railroad company by its own primary action, and for its own profit and advantage.

If it obtained such order for the appointment of a flagman under a contract with the village council, proposed by, and entered into, at the request of such railroad company, by which it promised and agreed to place a flagman at such crossing, if the village council would repeal its ordinance restricting the speed of railway trains through the village, then such appointment was in effect substantially made by itself, for its own benefit, and was not “lawfully required” within the meaning of such original contract.

The village or state could under Rev. Stat. 247a, 3443a (Lan. 307, 5529), only require flagmen to be stationed at crossings which were found to be dangerous to the public; and if this railroad company thus obtained the right to make this crossing dangerous, upon its promise to place a flagman there, it would be unjust to allow it to recover the cost thereof from the traction company under the terms of the contract sued upon.

.Viewed in the light of these facts, if proved, such construction of such contract would do violence to its spirit and intention, if not to its plain letter.

There is however another ground of error relied upon by the plaintiff in error, to wit, that there was no consideration for the promise to pay the cost and expense of maintaining a flagman, and that the judgment should have been for the defendant below, instead of for the plaintiff.

This court is in full accord with such claim, and finds that such promise was void for want of consideration, and so held upon the former hearing of this case; and judgment should have been entered for the traction'company and the case dismissed.

The contract in question entered into by the predecessors of the parties hereto, was peculiar in this, that it attempted by its terms to secure rights to the railroad company not vested in it by the laws of the state, while on its part- it granted to the other contracting parties no right of any kind that under their franchise they did not already possess.

The contract related to one matter only, the crossing of the railroad company’s track by the traction company’s road on a public street in the village named, and not a single right or privilege was granted to it by the railroad company that it was’not already vested with under its franchise. Instead of that, its rights were restricted by the wording of. the agreement without recompense of any kind.

When a municipality annexes territory embracing a county road, as was done here, the title in fee to such part of the county road vests in the municipality in trust for the public. Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414, 427 [69 N. E. Rep. 738]. Therefore, such title vested in. Barberton when it annexed the territory embracing the county road, now the .street in question.

The traction company had a right to lay and maintain its tracks at the grade of such street, and along its center as it did, and across the track of the railroad by virtue of the rights it acquired under its franchise, without being liable to pay anything to the railroad company. But at all events, under such .state of facts, if any liability could arise to the railroad company by virtue of its being the owner of the adjoining property, as claimed by it, no waiver of the right to enforce such liability or release of 'damages, was provided for in such contract, so as to constitute a consideration for such promise.

The railroad company had no right to compel the traction com-’party to build an overhead crossing — a bridge; and even if it were the owner of the adjoining lands, it was not referred -to as such in the contract, and did not attempt to release the traction .company from liability for any damage which might result to it as such adjoining owner from the building of such bridge. Where a company, like the plaintiff in error, acquires and is granted the 'right to construct and maintain a single track along and upon a street of a village, as in this case, no additional burden is cast upon the land, and adjoining lot owners are not entitled to any compensation, if the track is laid at the grade of the street, and along its center, as was done in this instance.

As it is not disputed, it must be taken as admitted, that the traction company had obtained the right under the statutes relating thereto, to construct and maintain its track on the street in question, and the eases cited, Lawrence Ry. v. Williams, 35 Ohio St. 168, and Schaaf v. Railway, 66 Ohio St. 215 [64 N. E. Rep. 145], are not decisive of this case, as they related to the construction of tracks upon country highways, and upon the sides thereof, not upon their center.

The precise point involved in the case at bar, was made and decided in the case of Simmons v. Toledo, 4 Circ. Dec. 69 (8 R. 535), where it was held that,

“The city council has the power to grant the right to the use of a public street for the purpose of constructing a railroad, and when the city grants to an electric railway company the right to the use of the street for railway purposes, the right to erect poles for the support of electric wires goes with it. Such use is not a new or additional burden which would entitle the property owners to an injunction.”

The plaintiff, an adjoining lot owner, sought by injunction to restrain the construction of the line until compensation was made to her.

This ease was affirmed by the Supreme Court without report, Simmons v. Toledo, 51 Ohio St. 626, and had never been overruled so far as we know.

The owners of adjoining lots have but an easement in the streets in front of their lots, and while it is regarded as property, as fully as the land itself, it is still bui an easement, and not land, and consequently whatever injury is suffered by the lot owner in such eases, is to the easement and not to the land; as, where the track is placed on the side of the street, and interferes with the free and unlimited use of the easement in obtaining egress and ingress by the lot owner from and to his lot, which is an injury different in degree from that suffered by-the public. And the same result would follow if the .poles were''placed in such position, or in such numbers as to interfere with, and obstruct,, such egress and ingress.

The purposes for which the traction company uses the street are old and established street purposes, the transportation of passengers and merchandise. The method only is new. Instead of transporting them in stagecoaches, hacks and wagons, they are transported in cars, which are propelled by electricity, instead of being hauled by horses. It is true, in order so to propel them, iron or steel rails are laid in the street, but when they are laid in the center, and substantially at the grade of the street, as the speed of the cars can be regulated by the municipality, the inconvenience to the public is or may then be made no greater than would be caused by the occupancy of the street by the number of the ordinary vehicles required to .transport the passengers and merchandise transposed on sueh cars; and the inconvenience suffered by sueh lot owners would be the same as, and no greater than, that of the public.

In the case at bar, however, if the rights of the railroad company as an adjoining lot owner, 'were in any manner infringed, no right in that respect was released or parted with on the part of such company, regarded as a party to such contract, as a consideration for the promise-of the other parties thereto in respect to such flagman. Indeed the contract itself provides in express terms that sueh other parties “assumed all responsibility and liability to any and all persons for any and all injuries and damages to persons and property which might arise from the construction and maintenance of such road.” (The italics are my own.)

It would, therefore, have been difficult for such other parties to-have escaped paying the railroad company for any injury done to its. adjoining property, not by the crossing of the railroad company’s, tracks, but by the construction of the traction line along Cornell street, if it had suffered any.

But at all events, such right was not involved, or necessarily parted with or released by the railroad company, as the contract related and applied solely to the crossing of the track of the railroad company, and not at all to the occupation of any other portion of the street, or of the right of the traction company to construct its track along the street.

In the ease of Cin. & H. Elec. St. Ry. v. Railway, 12 Circ. Dec. 113 (21 R. 391), (affirmed by the Supreme Court without report, Railway v. Railway, 51 Ohio St. 550), it was held:

“Where a steam road crosses a highway or a street, a street railway which has the right to lay its' tracks in the street may cross the tracks * * * without compensation to the steam railroad company.”

For these reasons the judgment is reversed, and this court,proceeding to render the judgment that the trial court should have rendered, the case itself is dismissed at the costs of the Erie Railroad Company.

Marvin and Winch, JJ., concur.


text:
    OFFICE AND OFFICERS.
    [Hamilton (1st) Circuit Court,
    November 15, 1905.]
    Jelke, Swing and Giffen, JJ.
    Lillie D. Jameson v. Cincinnati (City).
    Workhouse Matron* is Mere Employee and may be Summarily Removed.
    One employed as an assistant matron of a workhouse is not an officer but a mere employee, although under contract for one year, and on sufficient proof of misconduct or neglect may be summarily removed by the board in control, and such action on its part will be conclusive as to her rights in the absence of specific allegations of abusé of discretion or corruption.
    ERROR to Hamilton common pleas court.
    Renner & Renner, for plaintiff.
    C. J. Hunt, city solicitor, for defendant.
   JELKE, J.

This case comes into this court on a proceeding in error to the judgment of the court of common pleas sustaining a general demurrer to plaintiff’s petition, on the ground that the same did not state facts sufficient in law to constitute a cause of action.

For the purposes of this case, we will assume the constitutionality of the board of police commissioners as created and empowered under Sec. 2096a, 2098 and 2049 Rev. Stat. (repealed 96 O. L. 96), although these sections have been declared unconstitutional by the Supreme Court, have been repealed by the legislature, and superseded by the new municipal code. Section 2096a Rev. Stat. provides:

“[Board of workhouse directors abolished; where, etc.] In cities of the first grade of the first class the powers and duties of the board of workhouse directors shall be exéreised and performed by the board of police commissioners of such cities and the board of workhouse directors of such cities is hereby abolished, and said board of police commissioners shall be taken and held to be the successor thereof. The members of said board of police commissioners shall each receive, in addition to the compensation already fixed by law, the sum of five hundred ($500) dollars per annum, for the additional services hereby required. ’ ’

Section 2098 Rev. Stat. provides:

“The board shall have the same powers, perform the same duties, and be governed by the same regulations, so far as applicable, in the maintenance, erection, or enlargement of any buildings or shops for workhouse purposes, or in making any addition thereto, or in the improvement or management of the grounds therewith connected, and in the management of the affairs thereof, and care of the convicts therein, as are conferred upon, and required of, the board of directors of houses of refuge and correction, as provided in subdivision one of this chapter; and the powers and duties of the council in respect to such board shall be the same, so fax as applicable, as are provided in said subdivision.’-’

Section 2049 Rev. Stat. reads:

“[Removal of Officers.] The board may, for misconduct or willful neglect of duty, and upon sufficient proof thereof, remove any officer or employe of the institution, except the superintendent thereof, who shall be removed for the causes and in the manner provided for the removal of city officers; and any employe of the superintendent may be discharged at his discretion; but no officer shall be removed by the board until he has had an opportunity to be heard in his defense. ’ ’

Plaintiff’s petition alleges that,

“On or about the first day of May, 1902, she was duly appointed by the board of police commissioners of the city of Cincinnati, acting as a board of directors of the city workhouse of said city as an officer, to wit, assistant matron of said city workhouse, for the period of one year from said first day of May, a. d. 1902, at a salary of fifty dollars per month, payable semiannually, and that she has been paid for her said services to the twentieth day of June, a. d. 1902. Plaintiff further states that on said June 20, 1902, the said board of police commissioners by a pretended proceeding on its part removed plaintiff from her position as assistant matron of said city workhouse, but that -said removal is illegal and void for the following reasons:
“1. Plaintiff was not given an opportunity to be heard in her ' defense.
“2. There were no charges against plaintiff and she had no notice of any charges against her.
“3. There were no charges, sufficient in their nature, if established, to justify her removal.
“4. Plaintiff was denied the right to be represented by counsel.
“5. Plaintiff was denied the right to meet her accusers and the witnesses face to face, and she was denied the right to cross-examine them.
“6. Plaintiff was denied the right to call witnesses in her own defense.” f

Section 2049 Rev. Stat., manifestly provides a different treatment and procedure in the removal of officers and employes, and the question arises whether or not plaintiff below was an officer or an employee. To call her an officer, as done in the petition, is a conclusion of law. She actually was an assistant matron, and in determining whether or not an assistant matron was an officer, all we have to look to is the petition and the law. We are of the opinion that an assistant matron was an employee, and not an officer. Being an employee, the board could for misconduct or neglect of duty, on sufficient proof thereof, remove her. Whether or not prior to such removal she is to be accorded a formal hearing, is determined by the last sentence of See. 2049 Rev. Stat., which provides that, “No officer shall be removed by the board until he has had an opportunity to be heard in his defense.” The expression as to an officer excludes an employe from such' provision. If then the board has removed an employee, we are bound to assume that it was for misconduct or wilful neglect of duty, and upon proof thereof sufficient in the judgment and discretion of such board. If the plaintiff below were an employee, she was not entitled as a matter of right under the provision of the law to be heard in her defense, neither was it necessary that formal charges be preferred against her and that she receive a formal notice thereof. The sufficiency of the charges and the proof is addressed to the judgment and discretion of the board, and in the absence of specific allegations of abuse of discretion or corruption, their determination of the matter is conclusive.

Plaintiff below, as a matter of law, did not have the right to be represented by counsel, or to meet her accusers; if any, face to face, and to cross-examine them. Neither was the board bound to accord her the privilege of calling witnesses in her defense. It is true the petition alleges she was employed for one year; but her contract of employment was subject to, and must have read into it, the provision of the law, viz., Sec. 2049 Rev. Stat.

We think the court below did right in sustaining the demurrer- and the judgment herein will be affirmed.

Swing and Giffen, JJ., concur.


text:
    CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    July 1, 1905.]
    Jelke, Swing and Giffen, JJ.
    H. C. Yeiser v. United States Board & Paper Co.
    CORPORATION MAT TERMINATE AGREEMENT WITH DIRECTORS FOR BREACH OP GOOB> Faith.
    An agreement between a corporation and certain directors based upon tlie-trust relation existing between them may be summarily terminated by the corporation when it becomes evident to those in control that such trust relation has been violated with reference to another contract entered into by such directors in their trust capacity, with themselves individually.
    Error to Hamilton common pleas court.
    C. B. Matthews and Pogue & Pogue, for plaintiff in error.
    E. J. Dempsey and Roettinger & Gorman, for defendant in error.
   PER CURIAM.

This case is here on error to the judgment of the court of common pleas. We think the judgment should be affirmed.

This court held, in United States Board & Paper Co. v. Browne, 25 O. C. C. 347, that the contract in question was not void on account of its having been made by the directors of the corporation with themselves, there being no allegation that it was an unfair contract. But after the making of the contract it was adjudged, in a suit brought for that purpose by a court of competent jurisdiction, that these directors had practiced a fraud on the members of the corporation in the purchase of the manufacturing plant. Good faith and perfectly fair dealing was required of them in that transaction, and they violated the confidence reposed in them by their associates. While this contract is an entirely different contract, still having been made by them with themselves while acting in a trust capacity for others, it could only stand if perfectly fair.

It having been found that Browne and Stuart had violated the "trust reposed in them, in the purchase of the manufacturing plant, they were not entitled to any further confidence and trust, and such being required in the present contract, the corporation had a right to put an •end to it. The facts being conceded, it became a matter of law for "the court and the court’s instruction was correct.

It follows from this, the verdict being a general one, that the judgment should be affirmed even though there is error in the record as to •other matters; but we think there are no other errors in the record— the principal errors relied on arise on the charge of the court — and the court having followed the rulings of this court made at a former hearing, we do not think that our former holding should be departed from unless it clearly appears that we were in error, and of this we are mot satisfied.

The judgment will therefore be affirmed.