text:
    PRIVATE TELEPHONE LINES NOT PUBLIC UTILITIES.
    Circuit Court of Licking County.
    The Gratiot & Brownsville Telephone Company v. The Brownsville Farmers' Telephone Company et al.

    Decided, February Term, 1912.

      Telephones — Private Lines Not Public Utilities — Persons May Associate for the Construction and Use of Private Lines — Public Utilities Act Not Applicable to Companies Already Chartered — Section 614-52.
    1. 'A telephone company, upon which both primary and secondary franchises had been conferred prior to the enactment of the state public utilities law, is not subject to the provision of the section of that law requiring that a certificate be secured from the public service commission that the exercise of the franchise or permit granted to it is proper and necessary to the public convenience.
    2. The construction of a private telephone line and station for the use of a number of persons associated together for that purpose does not constitute a public utility, nor are persons so using such a line subject to control by the public service commission.

      J. G. Bassett and Robert Ramsey, for plaintiff.

      Fitzgibbon ■& Montgomery, contra.
    Powell, J.; Voorhees, J., and Shields, J., concur.

       Affirming Gratiot & Brownsville Telephone Co. v. Brownsville Farmers Telephone Co., 13 N.P.(N.S.), 429.

   This is an action by the plaintiff to enjoin the defendant, the ■Brownsville Farmers’ Telephone Company, from exercising any permit, right, license or franchise heretofore granted it, but not actually exercised by it, for owning or operating a plant for furnishing telephone service thereunder in the locality in which it is situated, and being the same locality occupied by plaintiff with its telephone lines and plant. This judgment is asked under and by virtue of the provisions of Section 54 of what is known as the Public Utilities Act of Ohio, passed May 31, 1911, and which act took effect June 30, 1911, and is found in Vol. 102 of the Annual Laws, at pages 549 to 575 inclusive. This act provides for the regulation and control of what are known and defined in said act as public utilities, and it establishes a commission to be known as the public service commission, and prescribes the duties and defines the authority of such commission.

The particular delinquency urged against the defendant is, that it is about to proceed with the construction of a telephone plant for the use of its stockholders and the public generally, without first having obtained a certificate of the public service commission that the exercising of its franchise, permit, right or license so to do is proper and necessary for the public convenience as provided by said Section 54. The petition, by proper averments, sets out the facts upon which the plaintiff predicates its right to the relief prayed for.

The defendant, by its answer, admits the corporate capacity of both plaintiff and defendant, and avers that it was incorporated on or about March 10, 1911 ; that it proposes to construct a telephone line in Licking and adjoining counties; that it has purchased supplies, material and equipment therefor, and has partially constructed said line; that a part of its said line was constructed prior to June 30, 1911,-and that prior to May 31, 1911, it was actually exercising the grants and franchises before that time granted to it under the laws of Ohio. It further admits that it has not received a certificate of public necessity from the public service commission, and that said commission has not determined that the construction of its proposed line was necessary.

A temporary restraining order was allowed on the filing of the petition. Afterwards a motion was filed to dissolve the same. The case was heard on its merits in the court of common pleas, the petition was dismissed, and the action was brought to this court by appeal, and the ease is now submitted upon its merits,

The question presented is: what is the proper construction to be given to said Section 54 of the public utilities act? Said Section reads as follows:

‘‘ Section 54. No telephone company shall exercise any permit, right, license or franchise that may have been heretofore granted but not actually exercised, or that may Jiereafter be granted, to own or operate a plant for the furnishing of any telephone service thereunder, in any municipality or locality where there is in operation a telephone company furnishing adequate service unless such telephone company first secures from the commission a certificate, after public hearing of all parties interested, that the exercising of such license, permit, right or franchise is proper and necessary for the public convenience.”

What is the "permit, right license or franchise,” the exercising of which is prohibited by this section ? It can not be the right to its corporate existence which in conferred by its charter, because that is a right which can not properly be said to be exercised. This is usually referred to as the primary franchise of a corporation, and confers upon it the right to exist, and gives it án identity of its own, with the right to carry out the objects and purposes for which such corporation is formed and as expressed in its charter. This right of the defendant was created and was in existence before the passage of the law sought to be construed; and it is claimed by the defendant that no other permit, right, license or franchise has ever been granted to it by any person or corporate body authorized to grant such permit or franchise.

On the other hand, it is contended by the plaintiff that the defendant’s right to construct and maintain a telephone line is such a permit, right, license or’franchise as is contemplated by said Section 54, and that the same is a grant of a part of the sovereign power of the state by act of the Legislature in enacting the statutes authorizing the same and under which said corporation is formed; that the right to construct, own and operate a telephone line is the permit, license or franchise which sjiall not be exercised, if it has not already been so exercised, until a certificate of necessity shall have first been obtained from the public service commission, as provided by said Section 54.

In forming a corporation, it is necessary to set out the objects and purposes in the application for which the corporation is formed; and we find in the articles of incorporation of the defendant that it is formed for the "purpose of building, and operating a telephone line in Licking- and adjoining counties.”-

These articles of incorporation were offered in evidence.

We are of the opinion that the construction contended for by the plaintiff in this action-is not tenable; that the defendant, having been created as a corporation on the 10th of March, 1911’ some two or three months prior to the enactment of the public utilities law, had not only the right to exist as a corporation, known as the primary franchise, but that it also had at that time the right to build and operate a telephone line in Licking and adjoining counties by virtue of its charter; and that this right carried with it the power and authority to do whatever' might reasonably be necessary to be done in order to carry out the provisions of such charter. That is, it had the right to purchase material, to construct a telephone line, own the same and operate it. Whether or not it was to be operated for the public, so as to constitute it a public carrier, and thereby make it subject to the jurisdiction and control of the public service commission, might be a disputed question. The objects and purposes for which it is formed are expressed in its articles of incorporation, and nothing is said in these articles' as to whether or not it intends to operate as a public utility or not. It can not be doubted that any number of persons may associate themselves together and construct and use a telephone line and station for their own immediate use, and not otherwise. Such a corporation would not be a public utility. There is nothing in the evidence that shows to us that this defendant either intends to operate as such public utility or simply as the owner of private property and for private purposes. We think the evidence fails to disclose that the defendant is such a public service corporation as could be required to come under thhe control and regulation of the public service commission.

The relief sought in this action can not be granted for another reason, and that is this: because what are known as both primary and secondary franchises having attached to the defendant before the passage of this act, the act itself, if construed to apply to this defendant, would be in the nature of a retroactive law, which is prohibited by the Constitution, and that such a construction would make the act itself unconstitutional.

It might further be said that, before it could be held that the defendant should procure a certificate of public necessity from the public service commission, the adequacy or inadequacy of the service rendered in the locality where the plaintiff’s property is located would first have to be determined; and while it might not be essential to its right to the relief sought in this action to show that it was rendering adequate service in the same territory, or in the same locality, where the defendant company expected to locate its lines; yet it would not be necessary to make such showing in this proceeding, but the question of the adequacy or inadequacy of its service would have to be raised and passed upon by the public service commission.

We think that, upon the two grounds mentioned, viz; first, that the construction claimed by plaintiff would constitute ■ the public service act retroactive, and, therefore, unconstitutional; and, second, that the evidence does not disclose that the defendant is or will become a public utility within the meaning of that act, the prayer of the petition should be refused. A decree for the defendant will be entered in conformity with this opinion,- and the petition will be dismissed at the costs of the plaintiff, and the cause will be remanded to the common pleas court for execution.


source: Caselaw Access Project

license: Public Domain

text:
    INJURY TO HEART FROM COLD PLUNGE BATH.
    Court of Appeals for Cuyahoga County.
    The New Amsterdam Casualty Company v. Cora Belle Johnson, Administratrix of Charles W. Johnson, Deceased.
    Decided, March 3, 1913.

      Accident Insurance — Dilation of Heart Due to Taking a Cold Plunge Bath — Disability Therefrom Held to Have Been Covered by Accident Policy.

    1. Death due to dilation of the heart, caused by a cold plunge bath voluntarily taken, was the result of accidental means within the terms of an accident insurance policy under the circumstances of this case.
    2. If an effect has the characteristics of an accident, it is proper to characterize the means producing the effect an “accidental means.”

      Seaton t& Paine, for plaintiff in error.

      Fold, Synder ■& Tilden, contra.
    Winch, J.; Meals, J., and Grant, J., concur.
    Error to the court of common pleas.
   The original plaintiff in this case was Charles W. Johnson, who brought his action against the casualty company to recover on an accident insurance policy for disability claimed to have been sustained as the result of an accident. Upon his death, the action was revived in the name of his administratrix.

The disability in question was due to dilation of the heart caused by taking a cold plunge bath.

The sole question submitted by the briefs for review here, though saved by motion for judgment on the pleadings, motion for a new trial, request to charge and exception to the charge given, is whether the injury complained of was effected solely and exclusively by accidental means.

The facts in the ease are as follows:

On Sunday, June 9, 1909, Major Johnson was apparently in perfect health, being a man of military activities and accustomed to keep himself in • good physical condition. He was wont to take horseback rides and upon his return therefrom to take cold plunge baths, from which, until the day in question, he had never- experienced any bad effects. ■ ; -'

This day in June was warm. -The major started, out about 9 a. M., returning about 1 p. m:, heated and perspiring freely. He took his usual cold plunge, but this time it drove the blood back to his heart with force sufficient to cause the trouble which the- doctors call -acute dilation of the heart. Medical experts testified that such is not the usual result of taking a cold plunge bath, nor is such result reasonably to be anticipated therefrom.

There was evidence in the record, however, that there is-danger in taking a cold plunge bath when one is heated, and that it is imprudent to take such bath when perspiring; also that the injury that occurred from taking this bath was a natural result from a natural cause.

The court charged the jury as follows:

“Now, the question will be this, gentlemen,.what was Major Johnson to expect when he took this cold plunge? A man is supposed to expect that which would result from the natural consequence of his act, as that act appears to him at the time, not as it might appear to a physician, but as it would appear to him under all the circumstances surrounding that particular transaction. Reading from a reputable work:
• “ ‘The natural consequence of means used is the consequence which ordinarily follows from its use; the result which may reasonably be anticipated from its use and which ought to be expected. The probable consequence of the use of a given means is the consequence which is’inore likely to follow from its use than it is to fail to follow. An effect which is the natural and probable consequence of an act or course of action is not an accident, nor is produced by accidental means.’
“So, then, taking all the circumstances of this particular case in consideration, the situation of Major Johnson, his condition at- that particular time, what had he a right to expect would' be the result of a plunge into a-’tub of cold water? If the thing that he should naturally expect, would be ,-a .dilation of -the -heart which would contract the muscles and cause the injury complained of, if that was to be expected in the ordinary acceptation of the term, by that kind of an act, then it would not be. accidental, because he would be held responsible for the natural consequences of his act, and consequently he would not be entitled to recover in this case. But if from a course of conduct hitheito' followed by him, he would have no reason or expectation to believe that an injury, such as dilation of the heart, would be occasioned by a plunge in cold water in that manner, then under the rules that I have given you, the injury would be caused by an accident and he would be entitled to recover in this case.
“Now, gentlemen, you can take into consideration your own human experience with respect to these things. Men can not close their eyes to things which they know themselves. Was the result which happened to Major Johnson, a thing that could reasonably be expected to follow from a cold bath! If it was, then he can not recover in this case nor can his executrix. If it was not, if the result was something he could not anticipate, something that was not to be expected, then within the meaning of the law, of the definitions I have given you, it would be accidental and it would be covered by the terms of this policy.”

In criticism of this, counsel for plaintiff in error says:

‘‘ If this is the law, all injuries are accidental unless voluntarily incurred.
“We maintain on the contrary, that the result of- an act has nothing to do with determining whether or not the act was an accident.
“The fact that injury as the resuult of an act is certain, or probable, or possible, makes it no less an accident, if the act was accidental in its nature. Nor does the fact that injury as the result of an act is uncertain and the chance of injury remote and not to be reasonably apprehended, make such injury, when it does occur, one occasioned by accidental means. The cause must be accidental, the result does not determine the cause.”
“The contention of plaintiff in error is that the event preceding the injury, and which was the proximate cause of the injury, must be in the nature of an accident. That an unexpected or unusual result of an act, not in the nature of an accident, does not render it an accident or the resulting injury one occurring by accidental means. In short, that the cause determines the result, while defendant in error claims that the result determines the cause.”

What lias been quoted from the charge and from the brief of counsel for plaintiff in error sufficiently exhibits the two theories as to the law applicable in such cases as this. Both theories are sustained by the authority of adjudicated cases. The general rule contended for by plaintiff in error is thus stated by Joyce:

“A person may do certain acts, the results of which may produce unforeseen consequences, and may produce what is commonly called accidental death'; but the means are exactly what the person intended to use and did use, and was prepared to use; the means were-not accidental, but the result might be accidental. ” 3 Joyce on Insurance, 3808.

This rule was applied in the case of Carn v. Iowa Traveling Men’s Association, 106 Iowa, 281, where the death of the assured was caused by his taking morphine, knowing at the time how much he was taking, but not knowing that such amount would cause death.

In the case of Schmidt v. Travelers Occident. Association, 42 Ind. App., 483, the assured died as a result of his exertions in climbing the steps of a hotel, carrying heavy satchels. .The hotel was in a high altitude where the atmosphere was rarefied. The court applied the. ralo as given by Joyce and denied a recovery.

In the case of Appel v. Aetna Life Insurance Co., 83 N. Y. Supp., 238, the assured suffered a rupture of the appendix from the ordinary jar incident to riding a bicycle, and was denied recovery.

The same was the result in the case of Hastings v. Travelers Insurance Co., 190 Fed., 258, where the assured ruptured his heart in an- effort to raise and lower himself by the use of his hands and arms when seated in a Morris chair. For other cases see briefs of counsel.

The contrary view, and the one followed by the trial judge, is formulated by Cooley in his Briefs on the La-w of Insurance (p. 3156), as follows:

“Policies of accident insurance usually insure against 'bodily injuries caused by external, violent and accidental means. ’ The important factor in this description of the risk assumed, is the word ‘accidental.’ In determining whether the cause of injury or death is.one of the risks covered, it is therefore necessary to first determine what is meant by the term ‘accidental,’ and whether the particular cause was ‘accidental,’ within the definition. Strictly speaking a means is accidental perhaps only when disassociated from any human agency, but this narrow interpretation is not recognized in the law of accident insurance. Whether or not the means is accidental, is determined by the character of its effects. Accidental means are those which produce effects which are not their natural and proper consequences. The natural consequence of means used, is the consequence which ordinarily follows from its use, the result which may be reasonably anticipated from its use and which ought to lie expected. The probable consequence of the use of a given means, is the consequence which is more likely to follow from its use, than it is to fail to follow. An effect which is the natural and probable consequence of an act or course of action, is not an accident, nor is it produced by accidental means. It is either the result of an actual design or it falls under the maxim that every man must be held to intend the natural and probable consequences of his deeds. On the other hand, an effect which is not the natural and probable consequences of the means which produced it, an effect which does not ordinarily follow and can not be reasonably anticipated from the use of such means, an effect which the actor did not intend to produce and which he can not be charged with the design of producing, is produced by accidental means. It is produced by means which was neither designed nor calculated to cause it. Such an effect is not the result of design, can not be reasonably anticipated, is unexpected and'is produced'by an unusual combination of fortuitous circumstances; in other words, it is produced by accidental means.”

The leading ease adopting this reasoning is Horsfall v. Pacific Mutual Life Ins. Co., 32 Wash., 132, where the assured, a strong, healthy man, attempted to lift a bar of iron weighing 350 to 400 pounds, by taking hold of one end of it while another man lifted the other end. Nothing unusual happened while he was lifting the iron, but the exertion caused dilation of the heart. Commenting on the facts of the case the court says:

“The result certainly was unexpected. It did not take place according to the usual course of things. If instead of a sprain of the muscles of the heart, the deceased had sprained the muscles of the back, or arm, or ankle, it certainly could not have been reasonably claimed that the result was not due to accident. The fact that the heart was dilated or ruptured, was none the less an accident according to the, usual acceptation of the term and according to the definition above given. We think the evidence shows an accident within the meaning of the policy. ’ ’

In a case where three men jumped from a platform a few feet from the ground and one of them, the assured, in alighting, caused a stricture of the duodenum, from which he died in a few days, the Supreme Court of the United States held:

“The court properly instructed them that the jumping off the platform was the means by which the injury, if any was sustained, was caused; that the question was whether there was anything accidental, unforeseen, involuntary, unexpected in the act of jumping, from the time the deceased left the platform until he alighted on the ground; that the term ‘accidental’ was used in the policy in its ordinary, popular sense, as meaning ‘ happening by cuance; unexpectedly taking place; not according to the usual course of things; or not as expected;’ that, if a result is such as follows from ordinary means, voluntarily employed, in a not unusual or unexpected way, it can not be called a result effected by accidental means; but that if, in the act which precedes the injury, something unforeseen, unexpected, unusual occurs which produces the injury, then the injury has resulted through accidental means. ’’ U. S. Mut. Ac. Assn. v. Barry, 131 U. S., 100.

May on Insurance (p. 515) speaks of the Barry case as one “far more sensible’’ than those holding the view urged by plaintiff in error.

In the case of N. A. Life & Accident Ins. Co. v. Burrows, 69 Pa. St., 43, it was held that a death resulting from abdominal strain occasioned while assisting to unload a load of hay, was caused by accidental means.

See also Hay v. Liability Co., 181 Pa. St., 220.

On authority of the Barry case, it was held in the ease of West Com. Trav. Assn. v. Smith, 85 Fed., 401, that death ensuing 'from blood poisoning which set in as a result of the assured wearing a pair of new shoes which rubbed the skin off his toe, was caused by accidental means.

The same was held in the case of Nax v. Travelers Ins. Co., 130 Fed., 985, where death resulted from a self-inflicted knife cut, made by the assured while trimming a corn, blood poisoning following.

Many other eases might be cited to the same effect, and they seem to be the later cases.

Chancellor Kent said:

“The modern reports, and the latest of the modern, are the most useful, because they contain the last, and, it is to be presumed, the most correct exposition of the law."

In quoting this Lieber says:

“It might be added, because they relate to cases applying to the same circumstances and conditions with our own; they speak the same language with ourselves. ” Lieber’s Hermeneutics, 226.

Accident insurance has now come to be a common thing; it is intended as a protection to those upon whom chance visits some injury while they are engaged in the daily and usual things of life. Every accident happens as the result of the working of fixed rules, but it is equally an accident if I voluntarily place myself under the operation of these rules without being able to foresee .the consequences of so doing, as it is if I know the rules, but some power beyond my control pxits me under their operation.

This thought is apparent in the case of U. S. Mut. Accident Assn. v. Hubbell, 56 O. S., 516, though the case turns on the application of another clause in the policy that the injury must not result from “voluntary exposure to unnecessary danger."

On page 525, Judge Spear says:

“It will not be doubted that the definition of ‘death by accidental means,’ given by the trial judge to the jury, viz, ‘any event which takes place without the foresight or expectation of the person acted upon or affected by the event, was a proper definition. ’ ’

Again, on page 526, he says:

“Accidents are the result very largely of the failure to observe due care, and yet the contract is intended as a remuneration in case of accident, and it is to procure the obligation of the company to pay this remuneration, that the assured pays the premium. As stated by Allen, J., in Keene v. Association, 161 Mass., 149: ‘By taking a policy of insurance against accidents, one naturally understands that he is to be indemnified against accidents in whole or in part from his own inadvertence.’ ”

Having in mind this consideration of the nature of the accident insurance contract, a liberal and popular rather than a strict and philosophical meaning must be given to the word “means,” qualified by the adjective “accidental,” as used in the policy.

We know that if the means is accidental, the effect is accidental ; that is conceded. But just as well we know that if the effect has the characteristics of an accident, we so characterize the means that produced it. In other words, it is common reasoning to say, as Cooley says: “Whether or not the means is 'accidental, is determined by the character of its effects.”

Giving this rule to the jury to guide it in its deliberations upon the facts in this case, was instructing it to employ that method of reasoning which men ordinarily use, and was therefore proper.

There was no error in the charge, and this being so, because the whole case turns upon this one legal proposition, the judgment is affirmed.


text:
    MEASUREMENT OF DISTANCE PUPILS MUST TRAVEL TO SCHOOL.
    Circuit Court of Hamilton County.
    Board of Education Concord Special School District v. Board of Education Blue Ash Special School District.

    Decided, July 8, 1910.
    In assigning pupils 'to the public school nearest to their residence, the distance should be measured by the most direct path from the school house door to the middle of the highway and thence to the said residence.

      H. H. Hosbrook, for plaintiff in error.

      CJuts. W. Hoffman, contra.
    Jones, J.; Smith, P. J., and Swing, J., concur.

       Affirming Board of Education v. Board of Education, 11 N.P.(N.S.), 286; Circuit Court affirmed by the Supreme Court without opinion, 88 Ohio State, —.

   In determining the distance a pupil of a public school must travel under Section 7735, General Code, the measurement should be made from the door of the sehoolhouse along the center of the most direct public highway to the nearest point of the curtilage of the pupil’s residence, including in said measurement the distances from the school house door and said point in the curtilage, respectively, by the most direct walk, lane, or path to the center of the highway.

It appears from the agreed statement of facts that the distance so measured in this case is more than one and one-half miles and the judgment below is, therefore, affirmed.


text:
    PROCURING A MISCARRIAGE.
    Court of Appeals of Franklin County.
    J. W. Tippie v. State of Ohio.
    Decided, February 4, 1913.

      Criminal Law — Charging Defendant with Taking a Preliminary Step in the Commission of an Offense with Intent to Commit the Offense Not Sufficient — Misccm'iage—Removal of a Dead Foetus Not Within the Statute — Intent of the Operator — Mistaken Diagnosis■ — ■ Weight of Evidence.

    1. The crime of causing a miscarriage, or the death of the patient upon whom a miscarriage w.as attempted, is not charged in an indictment which goes no further than to allege that chloroform was administered to the said patient with intent to procure a miscarriage, but while she was under its influence the patient died.
    2. The removal of a dead foetus is not producing a miscarriage within the contemplation of the statute; and one accused of causing'the ■ death of a woman through an attempted miscarriage is entitled to an instruction to the jury to the effect that if he honestly believed from his examination of the patient that there was a dead foetus in her uterus, and administered chloroform to her as an anaesthetic with the intention of removing said foetus, and she died from the effects of the.chloroform before an operation had been attempted, he should be found not guilty.
    3. Such an instruction would not be erroneous because of failure to provide that the honest belief of the accused must have been based on reasonable grounds, since if there should be a finding that the intent of the accused was not to destroy foetal life but to relieve the patient of a foetus aiready dead, there would be a- failure on the part of the state to prove intent, and the accused would be entitled to an acquittal.
    4. The testimony of the husband of the deceased that he arranged with the accused for the procurement-'of a miscarriage, does not, where contradicted in essential particulars, outweigh the presumption of innocence, a good reputation and a plausible connected story to such an extent as to warrant a verdict of guilty beyond a reasonable doubt.

      F. L. Owen, for plaintiff in error.

      E. G. Turner and IF. E. King, contra.
    Dustin, J.; Allread, J., and Ferneding, J., concur.
   Section 12412, General Code, provides:

“"Whoever, with intent to procure the miscarriage of a woman, prescribes or administers to her a medicine, drug, substance, or with like intent, uses an instrument or other means, unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, if the woman either miscarries or dies in consequence thereof, shall be imprisoned,” etc.

Under this section, J. W. Tippie, a physician, was indicted as follows:

“J. W. Tippie * * * on or about the second day of August, in the year of our Lord one thousand nine hundred and twelve * * * unlawfully, wilfully and knowingly did administer and caused to be taken by one Nettie Engler, the said Nettie Engler being then and there pregnant with child, a certain quantity of a certain poisonous drug, to-wit, about a dram of chloroform, which said chloroform was then and there administered to the said Nettie Engler by said J. W. Tippie, with the intent then and there to procure the miscarriage of the said Nettie Engler; said miscarriage not being then and there necessary to preserve the life of the said Nettie Engler and then and there not having been advised by two physicians to be necessary for said purpose. In consequence of the taking of said poisonous drug, to-wit, chloroform so administered to the said Nettie Engler by the said J. W. Tippie at the time and with the intent aforesaid, the said Nettie Engler then and there on the second day of August, A. D; 1912, at the said county of Franklin died.”

On trial Tippie was convicted and sentenced to one year in the penitentiary.

Error in the proceedings is claimed;

First. Because the indictment does not state a crime, in that it charges that a miscarriage was produced by chloroform, whereas it is impossible to produce a miscarriage by the use of that drug alone.

In answer to this, it is contended by the state that the use of chloroform was one of the preliminary acts of the crime, which was to be followed by the use of instruments, and the use of the drug, therefore, in furthering the intent to produce a miscarriage. made it a criminal act, under the section quoted.

The court can not take notice that chloroform will not produce a miscarriage, it being a scientific fact not sufficiently well known, to come within the purview of judicial knowledge. But on the trial it was clearly shown by the uncontradicted testimony of medical witnesses.

' It then became a legal question, for the court to decide, whether under the evidence there had been a failure of proof.

The indictment charges the use of only one means, and, eoncededly, that was insufficient of itself. Was it incumbent, therefore, upon the court .to direct a verdict of acquittal? The common pleas court held with the state that the crime was made out, if the use of chloroform was one of the means contemplated in the criminal intent, and that means proved fatal to the patient, although it did not produce and could not produce a miscarriage.

There was evidence tending to show that the chloroform was used to produce anesthesia, and, while the patient was in that state, instruments were to be used to effect a miscarriage. But, was that the crime charged in the indictment? We think not.

The Supreme Court has recently indicated its adherence to the well established rules of criminal law that require the crime charged to be accurately described in the indictment. In Coblentz v. State, 84 O. S., 235, it was held that an indictment “must aver all of the material facts necessary to be proven in order to convict, with such reasonable certainty as to advise the defendant what he may be expected to meet at the trial. ”

The indictment makes no allusion to instruments nor the use of them. The defendant went to trial relying upon his ability to show that chloroform could not produce a miscarriage, as charged in the indictment, and then evidence was permitted on behalf of the state that he intended to follow up the chloroform by the use of instruments.

We think that was prejudicial error.

The case of Tabler v. State, 34 O. S., 127, is cited as sustaining the view of the trial judge. But we think that case may be fairly distinguished from the one at bar.

In the Tabler ease there were two counts in the indictment, one charging the use of a drug, and the other the use of an instrument, to destroy the foetus. The verdict was general, finding defendant guilty on both counts, and it was argued by his counsel that that involved a contradiction, and that it was error for the court to refuse to charge that a finding that the crime was the combined result of the two means would require an acquittal.

The court held that there was no error.

It does not appear from the report of the case what the drug was that was alleged to have been used; but the argument and the opinion are based upon the view that either the drug or the instrument might have been effective; and that the use of both would simply hasten the fatal result. ITenee, a finding of a combined effect was not repugnant to a verdict on both counts.

In the indictment under consideration, no instrument is alluded to, and the drug that is alleged to have been used is harmless so far as producing a miscarriage is concerned.

If this verdict is allowed to stand, the records of the court will show that a man was convicted of producing a miscarriage by the sole use of a drug that is conceded by scientific and medical experts as incapable of such an effect.

Second. Again, it is claimed that the court erred in refusing to give, before argument, instruction No. 5 asked by defendant, as follows:

“If the defendant honestly believed from his examination of Nettie Engler that there was a dead foetus in the uterus, and that chloroform was administered as an anaesthetic, so that he could remove the foetus without pain to the patient, and she died from the effects of the chloroform, he would not be guilty, even though he was mistaken in his judgment, and your verdict should be not guilty. ”

This charge stated briefly the whole defense'; and, we think, should have been given. • '

. The court, it is asserted, was of the opinion that the instruction and the defense lacked the important element, in the language of the statute, that the miscarriage contemplated was “necessary to preserve life or was advised bjr two physicians to be necessary for that purpose;” and that it was sufficient for the defendant to show that he honestly believed the foetus to be dead, and that the use of the .chloroform was to prepare for its removal without pain to the patient.

The history of the statute shows that it was designed-to punish the removal of a “vitalized embryo”; and that phrase was in use until the abbreviated form of the codification was adopted.

And I think we may assume that that continued to be the intent of the Legislature. For, after the' embryo is dead, it would seem, even to a layman, that the wise and humane act would be to remove it.

Dr. Hamilton testified (p. 150 of the record) that:

“It is good practice to remove a dead foetus whenever the condition can be made out.”’

We think, therefore, that the removal of a dead foetus was not, in contemplation of the statute, producing a miscarriage.

If done, unlawfully, by unprofessional hands, or without reasonable grounds to believe the foetus to be dead, and death to the patient results, the operator would be guilty of manslaughter, but not of the crime charged.

It is suggested that to permit an acquittal on the ground that the defendant acted on an honest belief that the foetus was dead, is to open a wide door of escape for abortionists, for they would always claim an honest belief that the "foetus of the victim was dead.

That does not follow. The jury would always consider whether there were any. reasonable grounds for such belief. It is not to be presumed that a claim of honesty of purpose will be allowed simply because asserted, or as against facts and circumstances inconsistent therewith. Intent is- of the.essence of the crime, and defendant should be allowed to show .-an innocent intent, and have the jury instructed that the evidence with reference thereto may be considered.

Tt' is contended by the state that Instruction No. 5 is faulty because it does not provide that the honest belief of the accused must be based upon reasonable grounds, as'when self-defense is claimed as necessary to preserve life.

• The distinction is that self-defense is an affirmative defense to be made out by the accused; whereas, here the instruction requested was simply to weaken the case of the state, upon which the burden rests to prove the criminal intent. If the jury should find, according to the instruction, that the intent was not to destroy foetal life but to relieve the patient of a foetus already dead, then the accused was entitled to acquittal because the state had failed to prove the alleged intent.

We think, therefore, under the defense that the foetus was thought to be dead, that instruction No. 5 should have been given.

Third. Lastly, we think the verdict was not justified by evidence of guilt beyond a reasonable doubt.

Defendant’s story, if true, is consistent with innocence, and with all the circumstances and all the evidence, except that'of the husband of' the victim, who, by his own confession, is particeps criminis.

According to Dr. Tippie’s testimony, upon complaint of the patient, he made three examinations and found bloody and purulent discharges; and upon final confession of the patient that she had used a lead pencil to bring about a miscarriage, concluded that the instrument had, at least, been successful in mutilating the parts and perhaps in killing the foetus; and that, if so, it would be proper to operate.

But, before operation, and after chloroform had been administered, he had cleaned the parts and introduced a speculum and curet; and not discovering the serious condition that he had anticipated, withdrew the instruments, decided not to operate then, and told his assistant that he was “through.” This language, uttered at the time alleged, is confirmed by his assistant, who appeared as a witness for the state.

A few minutes thereafter the patient died from the effects of the chloroform.

An autopsy showed that the foetus had not been disturbed nor mutilated and that the foetus showed a period of four or five months gestation.

The testimony of medical witnesses was that it was quite difficult, at that age, to determine whether it was dead or alive, and that the alleged symptoms of bloody and purulent discharges, and chilliness of the patient, were in harmony with the theory that the foetus was dead, and that the reported use of a pencil would strengthen that opinion.

As against this there is the testimony of the husband that he arranged in his preliminary interview with the doctor for the procurement of a miscarriage.

We think this testimony, contradicted, in essential particulars, should not weigh against the presumption of innocence, a good reputation and a plausible connected story, to the extent that it warrants a verdict of guilty beyond a reasonable doubt.

For these reasons we think the motion by defendant for an instructed verdict of not guilty should have been sustained.

Judgment reversed and the accused discharged.


author: By the Court

text:
    INTERFERENCE OF TELEPHONE WIRES WITH THE MOVING OF A BUILDING.
    Circuit Court of Licking County.
    The Newark Telephone Co. v. J. Frank Swartz.
    Decided, February Term, 1912.

      Bights in the Street — As Between a Telephone Company and the Mover of a Building — By Whom the Expense of Baising the Wires Should he Borne — Franchise Bights — Trespass—Injunction.
    A telephone company may be required to raise its cables and wires, to such a height as to permit the moving of a building thereunder, but the company may insist on doing the work itself and charge the expense of so doing to the mover of the building.

      Kibler ■<& Kibler, for plaintiff.

      Flory & Flory, contra.
   By the Court

(Voorhees, Shields and Powell, JJ.).

This is an action to enjoin the defendant, who is a mover of buildings, from interfering with the wires and cables of the plaintiff, the Newark Telephone Company, in the moving of a building located on a lot abutting on Jefferson street in the city of Newark, Ohio, and which the plaintiff claims can not be done without raising the wires and cables of the plaintiff, or cutting them. The petition, by proper averments, sets out the cause of action, and prays that the defendant be enjoined.

The defendant, by answer, admits that he is about to move a building from one lot, abutting on Jefferson street, west some distance to another lot on said street; and that it will be necessary, in moving said building, to raise the cables of the plantiff from six to nine feet higher than they are now located on its poles along said street, and avers that he did not intend to cut, destroy or injure the plaintiff’s property in any way, but that he simply desired to loosen said cables as they are now fastened to the poles on plaintiff’s system of telephone lines, and raise the same so that said building could pass under said cables, in taking it from the lot where it is now located under the cables, when moving the building from Jefferson street to the lot to which it is to be moved.

A reply is filed to this answer, denying all the averments of the same which are not admissions of facts set forth in the petition. A temporary injunction was allowed, and a motion was filed to dissolve the same. The case was appealed to this court, and was heard upon its merits.

We think the principal contention here arises upon the proposition as to whether or not the defendant, in the exercise of his calling as a mover of buildings, would have the right to loosen the cables of the plaintiff and raise the same on its poles from six to nine feet, as he says he requested the plaintiff to do. The plaintiff contends that it has been, and is now, willing to raise said cables on said poles,' so as to permit the passage of said building under the same, provided the defendant would pay the expense of such moving, which the defendant refused to do, but claims that he would have the right to raise the same at his OAvn expense.

We think that this is substantially the controversy in this action, and we think further that the position of the defendant in relation thereto is untenable. While the right of the telephone company on Jefferson street is not an ordinary use of such street, yet it is there by a franchise.granted by the city ol Newark, and has the right so to be there; that while it would be without right or authority to prevent the defendant from using the street for the moving of buildings, we think also that this is- not an ordinary use of such street, and while the defendant would have the right to use the street for that purpose, yet he must do so in such a manner as not to interfere with the rights of the plaintiff in occupying the street with its poles, wires and cables.

It is argued that the franchise, which has been granted to the plaintiff, and under which its poles occupy the street, provides that in no event shall the streets, avenues, lanes, alleys and courts be unnecessarily obstructed, and that plaintiff’s action in refusing to raise such cables without the defendant paying the expense thereof, is- in violation of this part of its franchise. We find from the.evidence that, while it is true that there is such a provision in the franchise, there is also a provision that the property of the plaintiff, its wires, poles and cables, shall not be unnecessarily interfered with, and we think that the rights of the plaintiff and the defendant, respectively, are mutual in Jefferson street. We think that the plaintiff, since.it is in its nature a public service corporation, has the right to insist upon doing whatever may be necessary to be done to its property in the way of arranging the same for the passage of buildings underneath its wires and cables, and that it is not obliged to do so without being paid therefor. The defendant is without any right or authority to raise the cables or wires of the plaintiff upon its poles without the plaintiff’s consent, and that the defendant would be a trespasser in attempting so to do, and because of the public service nature of the plaintiff -we think that an injunction would lie, where in ordinary cases between individuals it would not lie to prevent the commission of a trespass.

It is further contended that, under the ordinance of the city of Newark, plaintiff is a trespasser in having its wires strung lower than thirty-five feet. We find that this provision of the ordinance is not applicable to the construction of telephone lines, and that it does not apply in this case.

We think, further that in order to grant complete relief in a ease of this kind, the order of the court should be in the alternative ; requiring the defendant, J. Frank Swartz, to pay the cost and expense of raising the cables of the plaintiff upon its poles, so as to permit the passage of said building under the same; and which shall be done by the plaintiff; or, in the event that he refuses so to do, that he be perpetually enjoined from raising such cables or interfering in any manner with the plaintiff in the possession and use of its property.

Á decree may be drawn in conformity with the views expressed in this opinion.


text:
    BELATED PROCEEDINGS IN ERROR..
    Circuit Court of Wayne County.
    Horace M. McLarren v. W. C. Myers, Administrator.

    Decided, 1910.

      Error Proceedings — What Constitutes Commencement of — Failure to Issue Summons Through Negligence of Clerk of Court — Application of Section 4988.
    Where a summons in error is not issued within the four months statutory limit, the proceeding is not saved by the provision of Section 4988 as-to the commencement of actions, and jurisdiction thereof is not acquired by the reviewing court.

      M. L. Spooner, for defendant in error. •
    Donahue, J.; Taggart, J., and Voorhees, J., concur.

       Affirmed, McLarren v. Myers, 87 Ohio St., p. —.

   .T-his cause is submitted upon a motion to dismiss the petition of plaintiff in error. The first ground of the motion is that the summons in error was not issued and served in time.

It appears from an examination of the record that the judgment to which error is sought to be prosecuted was entered on the 23d day of April, 1910; that the petition in error was filed August 12, 1910; that the summons in error issued on the 27th day of August, 1910, and that this summons in error was served upon the defendant in error on the 29th day of August, 1910, and this motion to dismiss the petition in error was filed on the 7th day of September, 1910.

The Supreme Court of Ohio in the case of Robinson v. Orr, 16 Ohio St., 284, and in the case of McDonald v. Ketchum, 53 Ohio St., 519, held that there being no special legislation relating to the prosecution of error, that the statutes of the civil code by analogy determine when .a proceeding in error is commenced, and that, therefore, a proceeding in error must be deemed to be commenced from the date of the summons actually served upon the defendant in error. In this case the summons in error actually served upon the defendant in error was not issued within the four months authorized for the bringing of error proceedings, therefore the case falls squarely within the doctrine announced by the Supreme Court in Robinson v. Orr and McDonald v. Ketchum, supra.

Counsel for plaintiff in error insist that this ease comes within the provisions of Section 4988 of the Revised Statutes of Ohio, which reads as follows:

“Within the meaning of this chapter, an attempt to commence an action shall be deemed to be equivalent to its commencement when the party diligently endeavors to procure service, if such attempt be followed by service within sixty days.’’

In this case, however, no summons in fact issued within the time limited for the commencement of an error proceeding. From the affidavits filed it appears that counsel for the plaintiff in error diligently endeavored to secure the issuing of this summons, but the fact remains that it was not issued until after the expiration of the four months.

In the ease of The Baltimore & Ohio Railroad Company v. Ambach, 55 Ohio St., the Supreme Court held that “to bring a ease within the saving provisions of Section 4988, Revised Statutes, a summons must be caused to be issued before the expiration of the statute of limitations governing the cause of action.” On page 554 in the same case the court say:

“ It is the diligent endeavor to procure service that brings the case within the saving provisions of Section 4988, and it can not be said that there is diligent endeavor to procure service when no summons has been issued to be served upon any one. If a summons has been caused to be issued, there can be an endeavor to procure service of such summons, but when no summons has been caused to be issued there can be no endeavor to procure a service. The burden of causing a summons to be issued is cast upon the plaintiff in error, and as no summons was caused to be issued, in this case, there was no endeavor to procure the service of summons, and therefore the plaintiff in error does not bring itself within the saving provisions of Section 4988, and the circuit court was right in dismissing the petition in error. ’ ’

To the same effect is the holding of the circuit court in the case of Andress v. Greenfelter, 9 C.C.(N.S.), 446, and while it is claimed that the facts in the case did not call this doctrine in question, yet the court hearing the case thought otherwise, and followed the doctrine announced by the Supreme Court in the case of Railroad Compaoty v. Ambach.

Aside from these authorities, however, from the reading of this section we are clearly of the opinion that this statute can not aid the plaintiff in error. No summons in error having been issued within the four months next after judgment, this ease does not come either within the letter or the meaning of Section 4988.

Counsel for plaintiff in error contend that the defendant in error by filing this motion has thereby entered his appearance to this suit. It is sufficient to say with reference to this question that the motion was filed after the expiration of four months from the date of the judgment sought to be reversed. After that time the plaintiff in error has no right to prosecute this proceeding in error, and this court has no jurisdiction to reverse the judgment of the common pleas court. The most that could be claimed for the filing of this motion is that it amounts to a waiver of the summons in error and entry of a voluntary appearance to the action; but we think this motion directly raises the question of the jurisdiction of the court, and the right of the plaintiff in error to maintain the action after the four months allowed therefor have elapsed. The defendant in error is. standing on his rights and asking this court by this motion to dismiss this case without further proceedings, for the reason that it has no jurisdiction, and while counsel has made diligent endeavor to procure this summons to issue in time, and the fault is not with counsel, yet the fact remains that no summons was issued within the four months, and no appearance effected within the four months either by service of summons in error or by the defendant in error entering his voluntary appearance thereto, and it necessarily follows that the petition in error must be stricken from the files.

The motion having been submitted upon evidence, and counsel for plaintiff in error desiring a finding of fact, such finding may be drawn in accord with the averments of the affidavit of counsel for plaintiff in error and time may be extended twenty days for that purpose. Exceptions of plaintiff in error noted.


text:
    PROMISSORY NOTE AS AFFECTED BY A PAROL CONDITION.
    Court of Appeals for Cuyahoga County.
    J. M. Shive v. E. E. Merville.
    Decided, March 13, 1913.

      Promissory Notes — Delivery of, When Effectual — Condition Making Notes Operative May be Shown by Parol.

    Under the provisions of Section 8121, General Code, parol evidence may be received to show that the delivery of. a promissory note was conditioned, and that the note was not to become operative, except upon the happening of a certain event.

      E. J. Pinney, for plaintiff in error.

      Gufhery & Gufhery, contra.
    Winch, J.; Meals, J., and Grant, J., concur.
    Error to the court of common pleas.
   Merville sued Shive on a promissory note. Shive answered, admitted the execution and delivery of the note but alleged that it was delivered to Merville upon condition that it should be paid if certain stock the latter had purchased through Shive should prove assessable and should be returned to Shive if the stock proved non-assessable; that the stock turned out non-assessable, Shive demanded the return of his note, which was refused, and he theretofore asked for the cancellation of the note.

On' the trial the plaintiff, Shive, objected to the introduction of any evidence by the defendant, Merville, under the allegations of his answer’ on the ground that it was an effort to vary the' terms of a written agreement by parol evidence. This objection was sustained, and the jury instructed to bring in a verdict for the plaintiff.

This action of the trial judge is here alleged as error.

It was held in the case of Cummings v. Neff, 44 O. S., 92, and again in Beecher v. Dunlap, 52 O. S., 64, that evidence of a parol agreement prior to or contemporaneous with the drawing and delivery of a bill of exchange, that the drawer is not to be liable as such, is inadmissible.

On the other hand, in other jurisdictions it has been held, as in the case of Burke v. Dulaney, 153 U. S., 228:

“In an action by the payee of a negotiable note against the maker, evidence is admissible to show a parol agreement between the parties, made at the time of the making of the note, that it should not become operative as a note until the maker could examine the property for which it was to be given, and determine whether he would purchase it. ’ ’

Justice Harlan, in the opinion in this case, remarks that the evidence offered and. excluded “did not in any true sense contradict the terms of the writing in suit, nor vary their legal import, but tended to show that the written instrument was never, in fact, delivered as a present contract, unconditionally binding upon the obligor according to its terms from time of such delivery, but it was left in the hands of Dulaney (the payee) to become an absolute obligation of the maker in the event of Ms electing, upon examination or investigation, to take the stipulated interest in the property in question.”

So here, the allegations of the answer amount to the same thing, that the note was delivered conditionally, to become an absolute obligation only in the event the stock mentioned was found to be assessable.

Whatever conflict on this subject existed in the decisions of the various states, the Negotiable Instruments Act, so-called, enacted by most of the states, adopts the rule of the federal court, cited.

The part of that act applicable here is now found in General Code, Section 8121, and provides that the delivery of the instrument, to be effectual, must be made by or under the authority of the maker, and, as between immediate parties, the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument.

The answer tendered in this ease came within the provisions of said section, and the evidence offered by defendant below, tending to establish the allegations of his answer, should have been received and submitted to the jury, under a proper charge.

See Starr Piano Co. v. Edgar, 12 C.C.(N.S.), 37.

For error in excluding evidence under the answer and directing a verdict for the defendant, the judgment is reversed.


text:
    AS TO THE REVIEW OF A JUDGMENT GRANTED BY DEFAULT.
    Circuit Court oí Licking County.
    John J. Fullerton v. Brandt G. Smythe.
    Decided, February Term, 1912.

      Discretion in Granting a Judgment by Default — Action of a Court in so Doing Will Not be Reviewed, When.

    The action of a trial judge in overruling a motion to set aside a judgment granted by default will not be reviewed, where the bill of exceptions discloses no reason for the failure of the defendant to file an answer or demurrer.

      Kibler & Kibler, for plaintiff in error.

      Smythe <& Smythe and J. M. Swartz, contra.
    Powell, J.; Voorhees, J., and Shields, J., concur.
   The defendant in error recovered a judgment against the plaintiff in error and Louisa Fullerton, upon a promissory note signed by said parties, in the court of common pleas of this county, on the 12th day of November, 1910, as upon a default. Before said last named date, the defendant, John J. Fullerton, by his attorney, filed a motion to strike the petition from the files for want of proper verification, which motion was overruled. On said date, an' application for leave to file an answer was also overruled and refused. Judgment was rendered upon said note as by default. No exceptions were taken to the action of the court in overruling this motion and in refusing leave to. file an answer. Afterwards, on the 25th day of November, 1910, the defendant, John J. Fullerton, filed an answer to the petition of the plaintiff in the court of common pleas, and at the same time filed a motion to set aside the judgment rendered on said 12th day of November, 1910, and that the court grant leave to file such answer, and make an issue thereon in said court. On the 17th day of December,-1910, the said motion was presented to the court upon a hearing, and was found by the court to be without merit, and ought to be overruled, and leave was again refused the defendant to file said answer. Thereupon, the plaintiff in error took a bill of exceptions to the action of the court in refusing to set aside said judgment and grant leave to file an answer. The case is brought into this court upon a petition in error to review and reverse the judgment of the said court of common pleas.

The question to be decided is, whether or not the court of common pleas abused its discretion in refusing to sustain said motion to set aside the judgment rendered on November 12th, and grant leave to the plaintiff in error to file his answer.

The record discloses that the defendant was in default for answer, after the overruling of his \notion to strike plaintiff’s petition from the files, -and tha-t no exceptions were taken to the action of the court in that behalf. The bill of exceptions does not disclose any reason whatever for the defendant being in default for answer or demurrer; and, unless the record discloses some good and sufficient reason why plaintiff in error was in default at that time, we think we are not authorized to review the action of the court below in a matter of discretion, unless the record further shows that such discretion has been abused.

It is said by Judge Hitchcock, in the case of Fowble v. Walker, found in the 4 Ohio Reports, at page 64:

“The only question which can now be examined is, whether the court erred in refusing to sustain this motion. Motions of this description, or those somewhat similar in their nature, are frequently made, and are always addressed to the sound discretion of the court. By sound discretion, I do not mean an arbitrary discretion, but such a discretion as may be exercised without the violation of any principles of law. Parties, not unfre-. quently, in the progress of a cause, lose advantages in consequence of their own negligence or laches, to which they may or may not be restored on motion, at the discretion of the court. If restored, it must be upon such terms as the court thinks proper to impose. Motions to set aside non-suits or defaults, for new trials, to amend pleadings, etc., are within every day practice, and it is discretionary with the court to grant or refuse them. Where, however, an advantage has been lost to a party in consequence of sheer negligcnee, it is rare indeed that a court will, on motion, grant relief. For instance, a defendant neglects to plead, and suffers judgment to go by default. It must be an extraordinary case that will induce the court to set aside the default, unless the defendant offers some plausible excuse at least for his neglect. ’ ’

We think that this dictum of the higher court is applicable to this case; that until the plaintiff in error, Fullerton, shows, by evidence embodied in a bill of exceptions, some plausible excuse for failing to have his answer on file, or why he was in default, we are not authorized, without such showing, to reverse the judgment of the court below. It is true that the answer attached to his bill of exceptions, and made a part of it, sets out what would he a complete defense if sustained; but it is simply as any other answer would be in raising an issue and while it states a good defense, we are not aware of any reason why an issue should not be joined on it as upon any other answer.

The judgment of the court of common pleas is affirmed.


text:
    INJURY FROM PREMATURE STARTING OF CAR..
    Circuit Court of Cuyahoga County.
    New York, Chicago & St. Louis Railway Company v. Paul Gulla.

    Decided, March 20, 1911.

      Negligence — Pleading—Railways—Infants—Responsibility for Negligence Dependent Upon the Pacts — Employe Ordered Off Oar and Train Started Before He Had Alighted.

    1. An infant, over fourteen years of age, is presumed to he sui j.uris in the sense that he is chargeable with negligence, but the measure of his responsibility in that regard is a question for the jury.
    2. A petition is sufficient which alleges that the defendant negligently started a car while the plaintiff was in the act of leaving it upon the order of the defendant’s conductor, although it fails to allege speciffically that the car was started with the knowledge of any of the train crew that the plaintiff was in a place of danger, if the situation of the plaintiff on the car and his surroundings at the time it was started are stated, and from such statement it is apparent that the defendant either knew or ought to have known that the plaintiff was in a place of danger at the time the car was started.

      J. H. Clarke and Hitchcock, Morgan <& Fackler, for plaintiff in error.

      Wing, Myler & Turney, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to common pleas court.

       Affirmed without opinion, N. Y., C. & St. L. Railway Co. v. Gulla, 86 Ohio State, 341.

   Gulla, a minor, seventeen years of age, was working with others for the Goffi-Kirby Coal Co., unloading a coal car standing on a switch connected with the railroad company’s road. Before the car was completely unloaded, the railroad company backed an engine in upon the switch, and coupled the tender thereof to said coal car preparatory to moving it. The conductor of the train ordered the men on the car to leave it; one man got out, and Gulla started to get out, had his feet on a step and his hands holding a handle bar on the outside of the car, when the conductor gave a signal, the engineer started his engine and the train started, carrying Gulla thirty-five or forty feet, where he was struck by a post or bin very close to the track and knocked down and injured. For his injury thus received, he recovered a judgment, which it is here sought to review.

It is first claimed that no employe of the railroad company could have any authority to order an employe of the coal company out of the car, and that- the employe of the coal company was not bound to obey any such order.

Whether this is so or not, we think is immaterial. We agree with counsel for the railroad company that: “As a matter of law * * * it does not seem to us to be of any consequence whether such an order as was alleged was given or not.” But as the ease did not turn upon this order, we pass the point by without further observation.

Second, objection is made to the court’s charging repeatedly that in actions by children or infants, their conduct should not be judged by the same rule which governs- that of adults, but that they are required to exercise only such care and prudence as “children of the same age” are accustomed to exercise under similar circumstances, and the repeated reference to the plaintiff as a child, when he was a man, doing a man’s work and earning a man’s wages.

In the eyes of the law, the plaintiff, seventeen years old, was an “infant.” Doubtless- it would have been better had the court used the term “minor” or “youth.” The trial judge seems to have followed the syllabus of the case of Cleveland Roll. Mill Co. v. Corrigan, 46 Ohio St., 283, which reads:

“In the application of the doctrine of contributory negligence to children, in actions by them, or in their behalf, for injuries occasioned by the negligence of others, their conduct should not be judged by .the same rule which governs that of adults; and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances. ’ ’

■Corrigan, however, was an infant under the age of fourteen years.

Counsel for plaintiff in error claims that there is a clear implication from the case of L. E. & W. Ry. v. Mackey, 53 Ohio St., 370, an infant nine years old, that a minor oyer fourteen years of age is sui juris and must be charged with contributory negligence the same as an adult.

We do not so understand that case. It has frequently been considered as authority to the effect that an infant under seven years of age is conclusively presumed incapable of contributory negligence, but between seven and fourteen, only prima facie so. Nothing is said as to the years from fourteen to twenty-one, except that Thompson, Negligence, is quoted to the effect that, ‘ ‘ When the age of the child admits of no doubt as to its capacity to avoid dangers, the court will decide this question as a matter of law”; and the court also says: “Unless, therefore, it can be held as a matter of law, that the injured person had the capacity to foresee and avoid danger, negligence will not be imputed to him.”

The next case involving a minor was in Cincinnati St. Ry. v. Wright, 54 Ohio St., 181, a minor “fourteen years old and upwards.” Here the court, on page 192, cite the Corrigan case and say:

“The intestate in the absence of proof that he was especially intelligent, was bound to no higher care respecting his personal safety than other boys of his age were accustomed to exercise under similar circumstances.”

We think the correct rule is well expressed by Wilson, J., in the case of Columbus Ry. v. Connor, 6 C.C.(N.S.), 361:

“An infant over fourteen years of age is presumed to be sui juris in the sense that he is chargeable with negligence, but the measure of his capacity in that regard is a question for the jury.”

Whether, in this ease, the court should have decided, as a matter of law, that the plaintiff had the capacity of a man to avoid danger, we do not know; the trial judge saw him, and though the record shows that he was “doing a man’s work and earning a man’s wages,” at manual labor, that is not conclusive as to his mental capacity.

As said by Judge Bradbury in the case of Cincinnati St. Ry. v. Wright, supra:

‘ ‘ There is no presumption that a boy who goes out to work for wages can descern danger more readily than one who does not. ITe may have been sent out to earn wages for the very reason that he was dull at his books, or from his own necessities or those of his parents. The subject is purely speculative. Doubtless certain occupations tend to quicken the perceptions and ripen the judgment. Whether any particular occupation has accomplished this end for a boy in any case is a question of fact for the determination of the jury, and not one of law to be decided by the court.”

Third, it is claimed that under the evidence a verdict should have been directed for the defendant because it was shown that the plaintiff had a clear and unobstructed view of the post or bin which struck him, for thirty-five or forty feet along the track, while he was alighting from the car, and there was nothing to prevent his dropping off before he reached the bin.

This statement of his physical surroundings may be correct, but when we consider that Güila, as he stood on the step with his hands on the handle bar had his face toward the car, was required to look downward for his next step, we think he may be excused from looking to the left for the obstacle which struck him.

Fourth, it is claimed that there is no allegation in the second amended petition that the car was started with the knowledge of any of the trainmen that the plaintiff was in a place of danger.

Said petition sets forth the situation of" Gulla on the car and gives his surroundings, then alleges that the defendant negligently started the car while the plaintiff was in the act of leaving it.

This, we think, was sufficient.

The case of L. E. & W. Ry. v. Mackey, supra, cited by counsel for plaintiff in error, at page 382, reads:

"The general rule is that allegations which adequately state the facts of negligence are sufficient to constitute a good pleading. An allegation specifying the act, the doing of which caused the injury, and averring generally that it was negligently done, states a cause of action, although it be not apparent from the complaint how the injury resulted from the negligence alleged. ’ ’

See also Davis v. Guarnieri, 45 Ohio St., 470, and New York, C. & St. L. Ry. v. Kistler, 66 Ohio St., 326.

At any rate, the railroad company did not stand upon this objection. After the plaintiff closed, the defendant put on its engineer, who testified that he saw Gulla on the car, watched him up to the time he got over the side of the ear, where he could still see him and then turned his face the other way, to look to the front as he started his engine. We think this method of trying the case waived said objection to the petition.

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