text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Oct. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    THE C., H. & D. R. R. Co. v. ROSA WAGNER.

      Where there is a double track in front of a station, and snow having fallen, what would be sufficient for the R. R. Company to secure safe and convenient passage from the platform across . the first track, to enable passengers to reach the second track.

    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The plaintiff in error seeks the reversal of a judgment, rendered against it in favor of the defendant in error, on the grounds that tho trial court erred in admitting and rejecting evidence, and in the charge given to the jury, and in refusing to charge as requested, and in overruling the motion for a new trial, based on these grounds, and the-additional ground that the verdict was against the evidence.

The petition of the plaintiff in substance averred, that on the day in question she purchased a ticket for passage on defendant’s road from Cumminsville to Elmwood, and waited at the station for the train ou which she was to take passage. That between the track on which her train was to-come, (the north bound), was another track, (the south bound),and that this track, and the way over it to the north bound track, was by the negligence of the defendant company, left covered with snow,so that the tracks could not be seen, and the same were not planked or guarded or protected in any way, or so arranged as to prevent injury to anyone crossing said track in order to get to the defendant’s train as aforesaid. She further averred that when her train stopped, she, upon the direction of the defendant company, started across to the same, and by reason cf such negligence on the part of the defendant, without any knowledge on the part of any such obstructions, and without fault on her part, she stumbled, slipped and fell, and was severely injured. Tne answer of the company admitted that it was a corporation as alleged, but denied all the other averments of the petition.

We áre of the opinion that the verdict of the jury, which must have found that there was negligence on the part of the defendant company, was manifestly against the weight of the evidence on this point This accident occurred shortly after noon. The plaintiff had been at the station house of the company for about two hours waiting for her train. She knew that her train was to come on the track farthest from the station, and that the south bound • track was between the station and the north bound track, and that she would have to cross one track to reach her train. And one train passed south to her knowledge while she was waiting in the station. There had been quite a heavy fall of snow the day and night before, and it was still lying on the ground. How deep it was can not be accurately stated, as the witnesses differ as to this, some putting it at two to three inches — others four to five, and one witness guessed that it was eighteen inches deep,but evidently she was mistaken. It was probably from four to six inches deep. But we think it is clearly shown by the evidence that the long stone or cement platform in front of the station and which came nearly to the south bound track, had been cleared off by the railroad men early in the morning, and that in addition to this, several tracks had been cleared away from the platform over the first track to the second, affording a safe crossing from the platform to the north bound track, and the snow cleared away from the passage-way between the two tracks, so that passengers could easily and safely reach the north bound train. The other parts of the south bound track were covered with the snow which had fallen, except the rails' which were plainly visible. This must have been so from the .fa'ct that trains had been passing there during the morning after the snow ceased to fall, and the evidence of witnesses is express as to this,though the plaintiff and another witness who followed her, testified that they could not see the rails. It seems clear, if plaintiff’s own evidence is to be credited, that she did not cross on the crossings made for passengers, but waded through the snow. This she ought not to have done, but even then, if she had looked for the rail which-she ought to have done, for she' knew it was there, she ought to have seen it. At all events, it seems clear that she slipped on one of the rails, and thus received her injury. But if it be true, as we think it was, that the defendant company had cleared the platform and made one or more safe and convenient crossings over this south bound track, we think that negligence on the part of this company was not' shown. Unless there were special circumstances shown, we can see no necessity for clearing the whole of the tracks in front of the station of the snow which had fallen-thereon, and in this case there was no évidence tending to show that ordinary prudence required it to be done.

We see nothing in the chargo of the court which was excepted to, that seems to us erroneous and prejudicial to the defendant.

We are of the-opinion that the charge No. 7, asked to be given was correct. It was in this form-. “I charge you that the defendant in this action was only bound to exercise ordinary care in view of any dangers to be apprehended, and that the failure of the defendant to remove snow from its tracks is not negligence per se. ” This was refused and exception taken. The general charge on this subject, was this: “If you find from the testimony .that the defendant did use the care in clearing the approaches to this train, that a prudent person would have exercised under the circumstances, then your verdict must be for the defendant.',’ Tbis was correct, but it left out of the view the last paragraph of the special charge refused which was correct.

Ramsey, Maxwell & Ramsey, for Plaintiff in Error,

Chas. W. Baker, for Defendant in Error.

For these reasons the judgment will be reversed and a new trial awarded.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE CINCINNATI, HAMILTON & DAYTON R. R. CO. v. HENRY CRISS.

      Negligence — Railroad permitting oil to accumulate on track—
    (1.) A railroad company permitting crude oil to accumulate in large quantities and remain for an unreasonable time upon its side tracks, where brakemen are accustomed to go in coupling and uncoupling cars, and whereby such woik is made dangerous, is guilty of negligence, and answerable therefor in damages to a brakeman who, while in the performance of his duty, slips upon such oil and is injured.

      Same — Connecting railroads working under traffic arrangement— Injury to employe of one R. R. Co. through negligence of other R. R. Co. — Liability—
    (2.) Such tracks bemg used to transfer cars from another railroad to defendant’s railroad in pursuance of a traffic arrangement between the companies owning such roads, the owner of such transfer tracks is liable for such negligence resulting in an injury to a brakeman not in its employ, but in the employ of such other company, if at the time he receives such injury he, in the discharge of his duty, is assisting in such transfer of cars.

      Admission of improper testimony, but afterwards jury instructed to disregard it — When not ground for reversal of judgment—

    (3.) When upon a trial, testimony is improperly admitted over the objection of a party, and the jury is subsequently instructed to disregard such testimony, the judgment will not be reversed on account of the error committed in admitting such testimony, when it is not evident that the jury failed to follow the instruction given to disregard it, or it does not otherwise appear that "^prejudice resulted therefrom to the party complaining.
    |Error to the Court of Common Pleas of Lucas county
   Parker, J.

This action is brought to reverse the judgment of the court of common pleas in an action wherein Henry Criss was plaintiff,and the Cincinnati, Hamilton & Dayton Railway Company was defendant, brought by the plaintiff below for damages for personal injuries sustained by him in consequence of alleged negligence upon the part of the railway company. The case went to trial, and resulted in a verdict of $7500 in favor of the plaintiff below. Various exceptions were taken during the course of the trial, which appear in the bill of exceptions, which is a part of the record here. A motion for a new trial was taken, on the grounds, (1.) That there was error in the admission of evidence on behalf of the plaintiff below, which was objected to and exception taken by the defendant in error. (2.) That the verdict was not sustained by sufficient evidence. (3.) That the verdict was against the weight of the evidence. (4.) That the verdict was contrary to law and the evidence. (5.) That the damages awarded were excessive. (6.) For errors of law occurring upon the trial. This motion was overruled, and judgment entered on the verdict.

A sufficient statement of the cause of action stated in the petition is found in the brief filed here on behalf of the plaintiff in error, and I will read from that:

“May 8th, 1895, Henry Oriss filed his petition against the defendant in which he alleges, in substance, as follows: That the defendant is, and for a long time has been, maintaining, in connection with its railway, certain yards containing numerous side tracks for the use of cars operated on said line of railway; that one of said tracks, known as No. 8, was used by the defendant for the purpose of receiving and standing cars thereon which had been received from the Lake Shore & Michigan Southern Railway Company; that it was usual and customary for said Lake Shore Company to deliver to said defendant on said track; that on the 10th day of April, 1895, the plaintiff was in the employ of the said The Lake Shore & Michigan Southern Railway Company as a brakeman; that about 3 o’clock in the morning of said day, while it was dark, it became the duty of the plaintiff, in connection with other employes, to switch three cars from the tracks of the Lake Shore Company and to place the same on said track No. 8 for the defendant; that when these cars came to the vicinity of said tracls, it was found that the same was almost filled with cars, and the plaintiff was ordered by his conductor to go along said track and make room for said additional cars; that plaintiff did find room on said track for these cars, but that it was necessary to couple together the cars already standing •thereon; that while plaintiff was attempting to couple said cars he stepped upon a quantity of oil negligently permitted to accumulate and remain upon said track, lost his balance, and in attempting to save himself from falling, his left hand got between the drawbars, and was so injured that it became necessary to amputate the same at the wrist. * He therefore asks damages.”

To the petition an answer was filed, which is in form a general denial of all the allegations except that respecting the railway company being a corporation duly incorporated, etc. The answer contains this averment also:

‘ ‘The damage complained of in plaintiff’s said petition was caused and occasioned by the carelessness and negligence of said plaintiff, and that the negligence and carelessness of said plaintiff then and there directly contributed to the damage complained of in said petition.”

Upon the trial, however, most of the facts controverted by this answer were admitted or conceded, or were established beyond controversy by the proofs. The real questions of fact which were controverted, were as to the manner in which the accident happened, and as to whether there was an accumulation of oil upon the track as alleged in the petition, it being contended by the defendant below, that instead of the plaintiff slipping upon the oil as he went between the cars to couple them, he undertook to couple the cars and did not give himself sufficient time to make the coupling; that he had sufficient time if he had taken it, but he waited until the cars came too closely together, then attempted to change a link from one car to another and make the coupling, and in consequence of his time being too short for that operation, his hand was caught and crushed, so that it was required to be amputated. It was claimed that something of this kind was admitted by plaintiff to a witness when he was being conveyed from a place near where the accident occurred to the city hospital. The plaintiff, however, on the witness stand denied that he had ever made any such statement or admission,

I will consider, first, the exceptions noted as to the admission of evidence upon the trial of the case. Upon page one of the bill of exceptions appear the following questions and answers: The plaintiff is testifying in his own behalf:

“Q. What wages were you receiving at the time you lost your hand? A. Well, I think it was $2.50 a night for ten hours.

“Q. Tell what the opportunity was, if any, for promotion to.a steady job from the work you were doing at that time. ”

“Objected to by counsel for defendant,and objection sustained.’’

Further down the page:

“Q Now I will ask you what was the custom of the Lake Shore Company, if you know, with reference to giving a man who was working in the position you were,a better position or steady work. (Objected to by counsel for defendant, objection overruled, to which defendant, by counsel, duly excepted.) A. If you understand the .work they will give you a better position.

“Q. What is the custom with reference to the length of time a man is required to continue working in the position such as you were before being advanced to steady work? (Objected to by counsel for defendant; overruled; defendant excepted.) A. Well, if you understand the work they would give — put you up.

,lQ. How long Mould you have to be employed as an extra, ordinarily, under the custom, to get steady work ? A. He could learn in about a year — lie would know all about it.

”Q. Was there any'custom about giving an extra man the preference in hiring men to do steady work over men who had not worked as extras? (Objected to; overruled; defendant excepted.) A. They would give it to the oldest man. '

“Q. Make that plain, now, just what the custom was, and who they would give steady work to, and how that was done. (Objected to; overruled; defendant excepted.) A. You would go in your turn; there was several extra men.

“Q. The oldest extra man would come in for the steady job first under the custom? (Objected to; overruled; defendant excepted.) A. Yes, sir.

“Q. What do you say about a man having to work as extra or not under the custom on that road at that time before he would receive such a steady job? (Objected to; overruled; defendant excepted.) A. It all depends on how many quit. If anybody quits, the next man takes his place.”

It appears from the testimony of this witness that according to the custom he is undertaking to tell about, the chances of an improved situation on the road did not amount to much more than a bare possibility. Under certain circumstances it would seem that certain men, with certain experience, after performing satisfactory work for the company, might be promoted, and might improve their condition — ‘might receive easier or more profitable employment. We are not prepared to say that testimony of that character may not, under some circumstances, be prejudicial and erroneous. We are unable to see, however, where the answers of the witness in this case with respect to the alleged custom of this railroad company could have in any way prejudiced the plaintiff in error. For that reason we hold that there was no error in the record with respect to them. No authority is citpd upon either side on this proposition, and we have not been able, in the time we have had to examine the ease, to find any bearing directly upon it; therefore we do not undertake to lay down any rule on the subject, but simply iky, under the circumstances of this case, we cannot say that the answers were prejudicial.

Coming down to pages 79 and'80. Edward Criden was testifying as a witness on behalf of the plaintiff below. He testified that soon after the accident — the next morning, perhaps — he went along the track about where this accident is said to have occurred, and that he discovered oil upon the track at a certain point. He is asked this question:

“Q. Tell the jury if you noticed or looked to see whether there was any oil upon the track along about where the cross-mark appears? A. This exact spot?”

He refers to a cross-mark upon a certain photograph that was exhibited to him, there being other testimony tending to show that the accident occurred-at the point where the cross-mark was made on the photograph.

“Q. Yes; about that place, as near as you can get it from this photograph. A. There is oil in different spots all along that track.”

A motion was made to rule this answer from the jury, which was overruled, and counsel for the defendant excepted. Counsel proceeds with the witness:

‘‘Q. Just describe the oil as you saw it along on the tracks — along on this track No. 8, about where that cross-mark appears — -I mean as you observed it there the next day. A. I dont know as I can say for sure that it was at that exact point or not.

”Q. Well, along at this place, and in the neighborhood of that cross-mark, right along there. (Objected to, unless he can testify as to the condition of this track at the place where the accident happened.)

”Q. If you observed track No. 8, along in the neighborhood.and at the place marked with a cross-mark, along about that locality, so as to be able to describe the condition of the tracks on th.e day that you were working there after Criss got hurt, please state what you saw there. (Objected to by defendant’s counsel, unless the question is limited to-the place where it is claimed this accident happened, which is indicated on that photograph by a cross. Overruled; defendant excepted.) A. It was spotted with oil on different parts of the track. (Motion made to strike out answer by defendant’s counsel; overruled; defendant excepted.)

“Q. Confine your answer to the immediate neighborhood or at the place where the cross-mark appears, about that place- — -what you saw there, if anything, in the way of' oil.”

The same objection was made, and the court says:

“His attention is now called to a particular photograph, Exhibit ‘B’ — if he noticed the condition and can say what the condition of the track was there at the point indicated in the photograph, or in the vicinity of it. He may testify to that. He is now testifying with reference to this picture-before him, and the mark . that is indicated there. (Defendant by counsel duly excepted.)

Mr’. Brumback: “ Everything else may be stricken out except what, he testifies to with reference to this place- and the immediate vicinity.”

Mr. Tyler: “I made my objections, and the court has-passed on them, and I have saved my exceptions.”

Mr. Brumback: “I don’t care if any testimony is ruled out, excepting the part inquired about, and the immediate-vicinity of this cross-mark; in other words, where the accident occurred. We don’t know where the accident occurred, therefore we can not restrict it to any definite-place, only in the immediate vicinity of that cross-mark. I concede, perhaps, it is not proper testimony as to anywhere else — at least I don’t want to take the chance of' any error, and the court may rule out answers of the-witness so far as any other place is concerned.”

It will be observed, also, that in addition to this declaration upon the part of counsel for plaintiff that he claimed' nothing from such testimony, that the questions of counsel to the witness were with reference to oil at or in the immediate vicinity of the place where the accident was said. to have occurred; so that in so far as the answers told of oil at any other place, they were not responsive to the questions of counsel.

Mr. Tyler then remarks: “Then my objection to all these answers should, be sustained. ”

The Court: “The testimony of this witness, then, that there was oil on that track in any place except in the immediate vicinity of the cross-mark indicated on this picture, will be excluded from the consideration of the jury, and you will not consider it, gentlemen, as evidence in this case as to the condition of that track.’’

So that it seems that at this point counsel for the defendant below requested that the court rule this testimony from the jury, and the court, acting upon that as well as upon the suggestion of counsel for the plaintiff, did so. It is urged, however, by counsel for plaintiff in error that this testimony was prejudicial, and that the admission of it was error, and that the ruling of the court taking it from the jury on his motion and in accordance with the suggestion of counsel on the other side, did not cure the error; and he insists that the verdict should be set aside, notwithstanding that action of the court. In 16 Ohio St., 221, appears the case of Thomas Mimms v. The State of Ohio — a criminal case. This is said in the syllabus:

“Where the court improperly overruled the objection of the defendant to testimony offered on the trial by the state, the judgment against him will not be reversed for such erroneous ruling, when the court, on motion of the defendant, excluded all the testimony so given from the consideration of the jury, and 'instructed them that it must be wholly disregarded. ’’

This was a murder case — criminal case of the highest character, in which the strictest rule ought to be observed by the court, and if there was any error that might be prejudicial — that might not be cured by taking the matter from the consideration of the jury — certainly careful consideralion would be given to that suggestion, in a case where a man upon trial was in peril of his life. I will hot stop to read from the opinion of the court upon the subject, but call attention to another casein which this question was before the supreme court of Ohio, found in 19 Ohio St., page 596 — the case of Klein v, Thompson. This was an action for damages on account of assault and battery, Nothing is said about the point in issue in the syllabus, but at page 571 this appears:

“Declarations of the defendant,made subsequently to the assault and battery, and tending to show express malice in the defendant in inflicting the injury complained of, were also allowed, against the exception of the defendant, to go in evidence. But the court subsequently, during the progress of the trial, on discovering that the petition contained no averment of malice, ruled out the evidence, and instructed the j.ury to disregard it.”

Whether that was done upon the motion of either party does not appear.

“It is contended that the introduction of' this evidence was error to the prejudice of the defendant, which was not cured by subsequent exclusion. In this state we do not regard the admission of improper evidence to the jury, which is afterward ruled out, as of itself constituting ground for reversal; though the question of its influence in producing a wrong verdict ought to be considered on a motion for a new trial. ”

Citing the case of Mimms v. The State in 16 Ohio St., 221.

I recollect that there was an interesting case involving this question decided in the third circuit some years ago, I think in Auglaize county, but I have not been able to lay my hand upon the report. There the same claim was made by the plaintiff in error, that the prejudice was so great resulting from the admission of testimony that the judgment ought to be reversed, notwithstanding the fact that the court attempted to disabuse the minds of the jury of the effect of it; and if I reeollect the case correctly, the circuit court laid down the rule that it must clearly appear that the testimony must have had that effect upon the minds of the jury; that it will be presumed that the jury observed the instructions of the court to disregard the evidence which was ruled away from them; and that only in case where the testimony was of such a character that it would appear to a reviewing court that it would be impossible for a court by any sort of an instruction, or for the jury by any Rind of a resolution or effort, to eradicate the prejudicial impression from their minds, would a reviewing court be justified in reversing a judgment on account of such testimony. We do not think this testimony is at all of that character. There is some question as to whether it was of a character that required a ruling of the court to take it from the jury.

Upon page 94 is a question that I believe is not insisted upon in argument. The witness is asked this: “Tell the jury whether you observed oil leaking at that place where you understood Mr. Oriss got hurt, before he got hurt.” That was objected to, and the objection overruled, and exception taken. The witness had testified to the means by which he had ascertained and identified the place of the accident, so that the jury might have been allowed to consider his testimony, as to oil at the place he observed, and at the same time decide whether or not it was the place at which Oriss was injured.

Those, I believe, are all of the exceptions to the admission of testimony. There were no exceptions taken to the charge of the court, or to any action of the court with respect to the giving or refusing of charges requested.

That leaves, then, for further consideration the question whether the verdict is sustained by the evidence. Upon that I say briefly,that we think that the facts alleged in the petition amount to negligence upon the part of the railroad companyjwhichjwould make it liable to this plaintiff below for^anyi, injury which he might have received in the line of duty, and while in the exercise-of due care upon his part, he^being an employe of another company; and we think that the facts alleged are fairly established by the evidence. It is also urged that the verdict is against the weight of the evidence. Without entering into a discussion of this evidence, or reciting what it is, I will say in brief that we have carefully considered this question, having gone through the bill of exceptions and read carefully the testimony of the witnesses and scrutinized it closely, and we cannot agree with this view of the matter. Therejare six witnesses on behalf of the plaintiff below, including himself, who testify positively to having seen this oil on the railroad track at or about the place where Criss was injured. Some of them appear to be entirely disinterested witnesses. Some of them say they saw oil in such quantities that they might have readily shoveled it up. They were unable to tell just what the depth of the oil'was, and they might readily have been mistaken, and have overstated its depth; but making a fair allowance for that, we think it fairly appears from the testimony that there was such a quantity of oil there, and that it remained for such a length of time, that the railroad comppny was guilty of negligence in not removing it'.- On the other' hand, there are four witnesses on behalf of the defendant below who undertook to testify as to the oil. They simply say that they saw no oil. Some of them could not and would not undertake to tell whether or not there was oil there, but they were in and about there under such circumstances that if there had been oil there, they may have failed to have discovered it. They were not looking for nor thinking about oil; they were there for the purpose .of examining cars, to see if there were any defects in them that might have re-suited in this accident. Their attention was not drawn to the question whether, there was or was not oil on the track. We think the verdict is not opposed to the weight of the evidence.

Swayne, Hayes & Tyler, for Plaintiff inError.

Hard, Brumback & Thatcher, for Defendant in Error,

It is also urged that the verdict is excessive in amount, We do not think so: we think it is warranted by the evidence.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    CARRIE B. LAW v. GEORGE W. LAW.

      Alimony — Power of court to afterwards change amount of alimony decreed, where amount had been fixed by agreement among the parties— . '
    The court of common pleas which had granted to the plaintiff a divorce from her husband, for gross neglect of duty, and which had in the same decree made to her an allowance of alimony from his estate, has the right for good cause shown, at a subsequent term of the court, to modify such decree for alimony and to reduce the amount to be paid to her each year, and on appeal, the circuit court has the same right.

      ,[Contra — Where the amount of alimony was arrived at by an agreement between the parties themselves, with the provision that such alimony should De' in lieu and full satisfaction of all claims and rights of the wife in the property and estate of the husband, and the wife thereupon,by written instrument, duly relinquished all her rights and interest in the property of her husband, the decree not providing for any change in the condition of the parties the happening of which in the course of nature, might and could have been foreseen ‘by the parties, the court has no power to change the contract of the parties, and can not change the amount of the alimony so decreed — Minority opinion by Smith, J. ]
    Appeal from the Court of Common Pleas of Hamilton county.
   Smith, J.

A majority of the court is of the opinion that the court of common pleas, which on August. 1, 1889 had granted to the plaintiff, Mrs. Law, a divorce from her husband, for gross neglect of duty, and which had in the same decree made to her an allowance of alimony from his estate, had the right,for good cause shown, at a subsequent term of the court, to modify such decyee for alimony and to reduce the amount to be paid to her each year, and that on appeal, this court has the same right. The facts set out in the petition filed by the defendant in the same’ case averred that after such original decree, which had directed the payment to Mrs. Law by her husband of $3000 each year as alimony, and gave to her the custody of their child, Edith B. Law, and provided that out of said sum the plaintiff was to support, maintain and educate said Edith, that the said child, about the first day of May, 1893, voluntarily left her mother and went to live with her father, who,until June 26, 1894, (when the court acted on the motion or petition of Mr. Law to reduce the alimony),had supported, maintained and educated her until she was of full age, and that after she arrived at age she was married. These allegations were supported by the testimony, and the majority of the court finds that the allowance of alimony to Mrs. Law should be reduced to the sum of $2200.00 per annum from July 1,1893, payable in monthly installments of $182.33-| each.

Judge Smith is of the opinion that no change should now be made in the provisions made as to alimony to Mrs. Law in the original decree of Aug. 1, 1889. That the terms of the decree,in so far as the alimony was concerned, were arrived at by an agreement made between the parties themselves, and were merely ratified by the court by its decree; one of the terms of which, so agreed to and incorporated into the decree, was that “ the provisions herein made for and on behalf of the said Carrie B. Law as to alimony, shall be in lieu of and in full satisfaction of all claims, rights, interests or demands that said plaintiff has or may have acquired in the property and estate of said defendant by reason of her marriage to him, and the said plaintiff shall relinquish any and all such interests by instrument in writing duly executed upon the demand of said defendant”, which was done.

In pursuance of the terms of such compromise agreement and the decree based thereon, a bond was duly executed by the defendant with surety to the satisfaction of the plaintiff, to secure the fulfillment by Mr. Law of the agreement and decree recited therein. 4nd there having been no provision in such contract, or in the decree itself, that in case of a change in the condition of the parties, or by the circumstances of the case, there might be a change in the amount decreed to her as alimony, and the parties having knowledge that there must in the course of nature be such change, for instance, that if the child lived a few years she must attain her majority,or that she might die or marry during the life of the mother, or that she might leave her mother, the presumption is that as no provision is made as to what shall be done in such event, no change in the amount of alimony was contemplated. And as the decree provides absolutely for the payment to Mrs. Law of $8000 per year as alimony during the life of Mrs. Law, unless she herself should marry, when all payments to her as alimony for herself should cease, I think that in view of all the facts and circumstances it would violate the contract made between the parties to change this allowance, and that it would be inequitable to do so, she having released all her interest in the estate of Mr. Law, other than that secured to her by the decree. I think this view is supported by the decision of the case of Olney v. Watts, 43 Ohio St., 507.


author: Caldwell, J,

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    H. H. PRATT v. W. F. WALWORTH.

      Contract of Indemnity — When may he sued on—
    Where a party indemnifies by contract another against all liability on certain obligations to pay, such indemnified party has a cause of action against the party giving him the contract of indemnity when judgment is obtained against him on such obligation.
    Error to the Court of Common Pleas of Cuyahoga county.
   Caldwell, J,

The case of H. H. Pratt v. W. F. Walworth is here on ■error from the court of common pleas, and the error alleged is that when the trial of the case opened below, H. H. Pratt offered himself as a witness, and objections were made to any testimony under the pleadings. The objection was ■sustained, Motion for a new trial was made and overruled. A bill of exceptions is here presented, setting forth what ■was done at the trial.

The action of Pratt came about in this way:

H. H. Pratt and P. W. Payne were partners selling typewriters, and they desired to dissolve partnership, and it was done in this way. P. W. Payne wrote this letter, ■which was acted upon by his partner, H. H. Pratt:

“For the purpose of closing our partnership and to enable one of us to act elsewhere, I hereby make to Mr. H. H. Pratt the following proposition:

“I will give or take for your entire interest in the business, as it now stands, Five Hundred Hollars ($500.00), to include the good-will and ownership of all assets of the business of whatever kind, and the assumption of all the liabilities of the same by the remaining partner,and the giving by him to the retiring partner full and sufficient indemnity against past, present and future liability arising out of the partnership business.”

Pratt acted upon this proposition by agreeing to sell upon the terms therein stated, and then Walworth gave this indemnity:

‘‘I hereby guarantee to H. H. Pratt against any liability on paper, made by the late firm of Payne & Pratt, with my endorsement; also against liability on acceptance in favor of Smith-Premier Company, dated May 1st and due July 3rd, 1892, and generally against any liability legally incurred as a member of said firm. W. F. Walworth.”

The Smith-Premier Typewriter Company, one of the creditors named herein, sued, and obtained a judgment and issued execution, and that was returned ‘‘No goods found.” Then H. H.. Pratt, to whom this indemnity writing or contxact was given, brought suit against W. F. Walworth to recover the amount of the judgment that had been rendered against him by the Smith-Premier Typewriter Company, and then the Smith-Premier Typewriter Company came into court below, and by proper pleadings undertook to place itself in position that whatever Walworth paid to Pratt, it might receive on that judgment — whenever the amount of the judgment was paid, it might receive it.

The ground on which the' court below refused to hear testimony under the pleadings was that this was an indemnity to save harmless Mr. Pratt, and that there was no liability. There was no cause of action against Walworth until Pratt had paid this judgment that had been rendered against him; whenever he had made any payment, then he might recover, and not until then.

.This class of contracts has frequently been before this court andvthe courts of different states; and the courts of our state have passed upon matters of this kind to some extent;and the general holding is, with very rare exceptions, that if the contract of indemnity is to save the party indemnified, harmless or from all damages, that then there is no cause of action on the part of the person indemnified against the one who indemnifies until such time as judgment has been rendered and has been paid by him. If it is to pay a certain obligation that the party, the one indemnified, is to pay, the authorities are quite unanimous, if not entirely so, that the time of payment is whenever the obligation exists; some authorities holding that whenever the debt is due and unpaid, the action may be brought; others holding that it must be determined to be due, and the amount, by some judicial action. But nowhere in this state, do we find any case that covers the language in this indemnity contract. The arrangement between the parties was, that the one who bought the assets of the firm, was to furnish the indemnity contract — full and sufficient indemnity against past, present and future liabilities; not against any damage, but to save him harmless from past, present and future liability, nor that the person who gave the indemnity contract should pay all the debts, but was to save him from liability, and the indemnity contract follows that language: “I hereby guarantee H. H. Pratt against any liability,” and that word “liability” is the one used.

Therefore, as to j’ust how this contract should be construed we get no light from the adjudications in this state; and going to other states, we find some little disagreement among the authorities. The general current of authority, and quite general on behalf of a large number of the states, is, that a contract of this kind is to be construed that the the liability, or that the person who signs the indemnity contract, can be sued at any time after judgment has been secured against the party who is indemnified.

There are two or three cases cited to us — one in Indiana, one from Michigan, that construe such a contract in such a way that there can be no cause of action until the judgment is paid; but they are exceptions to quite a well settled line of adjudications, that the cause of action arises whenever liability is established by judgment obtained against the party indemnified and we believe that is the ruling that should obtain in this case; that Mr. Pratt had his cause of action when the judgment was rendered against him, and that he did not bring it until that time had arrived, and that his cause of action at thqt time existed against Walworth, and the ruling^of the court, therefore, was erroneous.

C. A. Neff, for Plaintiff in Error.

Carpenter & Young, Gilbert & Hill, for Defendant in Error.

The creditor seeks to come in here, and has argued his case upon the supposition that no cause of action at that time existed on the part of Pratt against Walworth,and yet, notwithstanding a creditor could subject the liability of Walworth, even at that time, for the payment of the debt to it.

We think there is no warrant for that.

But if Pratt had a cause of action — if the time had come when Pratt could subject the indemnity contract to his benefit, and his cause of action was complete, then it is entirely proper that the creditors should intervene and receive the. benefit therein from the court.

The case is reversed,and remanded for new trial.


author: Laubie, J.

text:
    Seventh Circuit — Jefferson Co., O. Circuit Court
    Nov. Term, 1897.
    Before Laubie, Frazier and Burrows, JJ.
    WILLIAM MEDILL AS ADMINISTRATOR, v. HENRY FITZGERALD et al. SAME v. SAME. WILLIAM MEDILL, AS ADMINISTRATOR, v. ROBERT LYON, et al. SAME v. SAME.

      Advancement to child to take effect after death — Evidence required—
    Where a decedent, at .his death, holds .promissory notes and a mortgage executed to him by his daughter and her husband,, • in order to establish a claim that the money for which such instruments were given was a gift to the daughter by way of advancement or otherwise, the evidence must be clear and convincing.
    Same—
    Evidence that such money was advanced by the father to build a home for the daughter, with the intent that interest there- ■ • on should be paid to him during his life and that the principal should be the daughter’s at his death, is not sufficient to establish an advancement, or a gift inter vivos or causa mortis.

   Laubie, J.

The cases of William Medill, as administrator of Christian Schneider, deceased, v. Henry Fitzgerald and wife, and the same plaintiff v.Robert Lyon and wife,are of the same character — wherein the defendants appeal and prosecute error from the same judgment.

The defendants move to dismiss the appeals, and the question presented is whether a party may appeal and prosecute error at the same time, from the same judgment; and if so, secondly, whether there was any right of appeal in the cases.

So far as the first question is concerned, it has been recently decided by the supreme court, that a party may appeal and prosecute error at the same time; and if it be determined that there was no right of appeal, then the error proceeding would stand.

Upon the question whether the cases were in fact appeal-able under the statute, we also hold against the motion. Either party had the right to appeal.

The actions upon the part of Medill were brought, as stated in his petitions, upon three several causes of action; the first two upon independent promissory notes executed by the defendants to the decedent, and the third for the purpose of foreclosing a mortgage given to secure the larger of the two notes in each case.

There was no denial in the answers of the execution and delivery of these notes and mortgages, but the defendant set up, in each case, in the nature of a cross-petition, an equitable cause of action to have the notes and mortgage delivered up and cancelled, on the ground that the money which they represented, was a gift by way of advancement to Mrs. Fitzgerald and Mrs. Lyon, the daughters of the decedent.

In such a case, where by cross-petition the party [seeks equitable affirmative relief which, if granted, would extinguish the legal cause of action,either party has the right of appeal. 54 Ohio St., 348.

Appeals were properly taken in these cases, and the petitions in error may be dismissed.

The question now recurs upon the disposition of these appeal cases. An agreement is presented to us by counsel, that in case this court find the appeals properly taken and good in law, that we should consider the cases as tried before us upon the testimony contained in the bill of exceptions, the same as if the witnesses had testified before us orally.

As I have said, the only issue in either case was upon an equitable cause of action, set up and denominated an answer to the petition it is true, but which is, in fact, a cross-petition, that the money represented by the notes and mortgage sued upon, had been given to the daughter by the father Christian Schneider, the decedent, as an advancement, either in full or in part satisfaction of her share of his estate upon his decease.

The burden of proof, therefore, rested upon the defendants; and a mere preponderance of evidence is not sufficient to establish the affirmative of that issue. The evidence must oe clear and convincing that such was the agreement.

In the case against the Fitzgeralds, the two notes, one for $300 and one for $800, were payable in one year after their date, and were dated in September, 1891; and the claim is that in the spring prior thereto, the father gave them::the money represented by these notes, to'|build a h'duse for themselves upon the lot in question.- -It is alsci alleged in the cross-petition, that the decedent gave this lot' to them at that time, but there is no evidence of it. The Fitzgeralds, or one of them, which one does not appear, owned the lot; nor does it appear from whom the title was derived, nor is it material to the disposition of the case.

The same is true as to the Lyons case, ■ but in that instance the house was built and the money advanced in 3894, and the notes executed December 24th, 1894,- more than three years after the Fitzgeralds’, but when the house was finished is not distinctly shown in the eivdence. In one case, the- contractor who built the Fitzgerald house, testified that Fitzgerald paid him the money, and’’! not Schneider; and in the other case, the contractor who built the1 Lyons house says that Schneider paid most of the money, and Lyon paid him some; but when the money was paid or given,or the houses finished, is not definitely shown. The daughter of Fitzgerald testified that in the spring of 1891, as she came home from school, when she was fourteen years of age, her father, mother and grandfather were upon the porch of the house they lived in, and she heard her grandfather say he would give her mother and father money to build a house, and her Aunt Menie too — that was :Mrs. Lyon — ‘and her grandfather said: “You had better take it now as any other time;’’ and she says,“They said,all right, and they took the money and built the house.’’ But if any money passed at that time, or that she saw the money, does not appear. It is a geneial statement or conclusion of hers, that they took the money and built the house.

So' there is no evidence really as to when the money was given, except that it must have been paid by Mr. Schneider, or handed over to the parties while the houses were build; ing. At all events, in each instance, after the house was’ finished, these-notes were executed for the amount that Mr;1 Schneider had advanced, and a mortgage taken by. him' to secure the larger note. In each instance "there . were two notes given of the same date,- payable one year .therefrom — - one for $800 and one for $500 by the Lyons; but for some unexplained reason the decedent did not include both notes in the mortgage.'

.. Now, an advancement is a gift to take effect immediately, as- the share or part of the sh-a're of a child in the estate of the father, which the child would otherwise receive .at his death, intestate. It is a gift absolute, to take effect immediately. And therefore, it was incumbent upon these,. defendants to show that the money represented by these-pap-, ers was a gift absolute, and io take effect-at once.

Here the old gentleman took notes from each for • the amount advanced, 'signed not only by the daughters, but by their husbands, each payable a year after its date, with mortgage on each house from each couple to secure the larger part of the indebtedness represented on the face of the papers. (

On the face of things, therefore, it was not a gift, but a loan.

In what manner and to what extent did these defendants rebut this, and show that the papers did not represent the true contract; that instead of it being a loan, a debt from them payable to the old gentleman in one year, it was. an absolute gift to take effect in presentí?

The evidence offered by the defendant's themselves, taking it all just as it stands in the bills-of exceptions, instead of shewing it was an absolute gift, to take effect in presentí, shows that it was a gift to take effect at death, if at all:

The brother of the decedent testified that the old gentleman told "him that he had given this money to his daughters to build houses, and had taken notes and mortgages for it; (the only witness in the case that,ever heard the decedent speak of the notes and mortgages).

Mrs. Schneider, a sister-in-law of Christian Schneider, the deceased, testifies that he said: “He gave the girls, money to build the houses, and they have to pay him interest as long as he lived. He had to live on the interest and when he is dead, it is the girls.”

William Y. Durban said the decedent told him several' times along in 1894 and 1895, after both houses had been built, that “he had helped his daughters to build their houses in order for them to have homes, that they were to pay him interest while he lived, and at his death it was to be theirs. He didn’t say he held any notes or mortgages against them, but he said, if they didn’t pay him the interest, he could sell the property; he wanted the interest to. live on while he lived, but if they didn’t pay the interest, he could sell the property. ” And upon cross-examination he says: “Q. He said, when he died he intended to give it to them. Is that it? A. Yes sir.” f

In his re-direct examination, he says: “Q Did he say he intended to give it, or that it was theirs when he died? A. He said it would be theirs when he died.” Re-cross examination. “Q. He didn’t say it was theirs then? A. No. sir, because it wouldn't be theirs as long as he was collecting interest on it. ”

Mrs. James Craig says: “Q. He said that he had given Yetta and Menie money to buy this property. Q. Did he say how much? A. I couldn’t say exactly, but it seems to me he said he gave Yetta $1100,and then he thought he ought to give Menie something, and he gave her $800, and they built their houses, Q. Did he say he had notes and mortgages against them? A. No sir. He said they had to pay him the interest on this money during his life time to keep him, and at the end of his life he expected them to keep their property. That is the conversation he had with me. It is no interest to me. Q. He didn’t say whether be had' one or two notes? A, He didn’t say he held any notes or mortgages. Q. But he said they had to pay interest during his life? At his death he expected to give them the houses? A. He didn’t expect to give it; he had given it. He expected them to keep it. • He wanted interest on the money during his life time. Q. At the end of his life it was theirs? A. At the end of his life he was going ta let them have it. Q. He had given.it to them — he gave it to them. Explain that to me. A. I am telling you as he told me, He said he gave Yetta, I think, $1100; I wouldn’t be sure, and they were going to build a small house, or had a small house, and he proposed her to have a better and larger house. He gave her $1100, I think that was it. Then he wanted Henry Fitzgerald to pay him the interest on that during his life, and he was going to make him do it, and at the end of his life, the property would be theirs. Q. That is what he told you? A. Yes sir.”

Mr. Ellis says: “After Henry Fitzgerald’s house was built, him and me got into conversation in the shop. We got to talking about building and about the children. He said he allowed to give the girls his property at his death. He said he would hold a claim on it, and if they would pay him a small interest up to his death, the property would be the girls. He said he intended to give Charley — be told me the amount, but I don’t know what the amount was. Afterwards he said Charley sent again to him for money. He said John and him went in,the pottery. He didn’t say he paid any for John, but that John and him had taken stock in the pottery. Q. Did you have any talk afterwards about Mr. Lyon? A." Not that I know of. Q. He never talked about Mr. Lyon’s house? A. No sir, nothing more than he said he intended to give the girls their share of the property. Q. That was before Mr. Lyon built his house? A. Yes sir. Q. After Mr. Lyon built, you had a talk again? A. Yes sir. He said he would claim a little interest. He wouldn’t charge much interest until his death,and then the property would belong to the girls. I told him at the same'time — ‘why don’t you make them a deed— I give my children a deed apiece for a house and lot, I says, why don’t you keep a little claim on it’; I says, I thought I might as well have the good of it as other people. I couldn’t get any rent for it,and everybody that live in it cheated me out of the rent,and I wanted to be clear of paying taxes for it.’ Q. What did he say to that? A. He laughed and said it was time enough when he died for the girls to get the property. He said he intended for them to have homes, and help them build their homes, and proposed for them to have them.”

. So the defendants themselves proved the declarations of the old gentleman that it was a gift not to take effect immediately, but at his death — that he intended to give them the money at his death, which was consistent with the fact that he had taken notes and mortgages for the amounts.

That he failed to carry out his intention can not now be helped. It is possible, ignorant man as he was — And these parties all seem to be ignorant — he may have believed that because he did not record the mortgage it would not be good, and would be worthless at his death.

It appears from the evidence of Mr. Fitzgerald and Mr. Lyon that after the death of the decedent they approached Medill, the administrator, about these notes and mortgages, and asked him if they could be collected; that Medill told them, yes, that he was going to try to collect them; they must make some payment; that he put the mortgages on record as soon as he discovered them, and he was going to foreclose them if .they did not make some ■ arrangements about it.

What was their answer about it at the time, from their own testimony? Why, they said we never expected to pay; or to have to pay these notes; the old gentleman gave the money to our wives, and he said he would' not record the mortgage, and the mortgage is no good. They made no claim whatever that this money was given to the wives as their share, in whole or in part, of the amount they would receive at the death of the father out of his estate. Ignorant people as they are, they would know about such gifts, although they might not know the technical name thereof, and yet, they then made no claim that these were gifts of that character.

W. L. Medill, for Plaintiff, (in both cases).

Erskine & Erskine, and Rogers & MeOauslen, for Defendants.

This is consistent with the statement of Mr, Conway, another witness on the part of the defendants,who testified: “Mr. Schneider and Í were particular friends. I used to go over there often. I lived fight across the street from him. He was telling me who owed him,and he told me Mr. Lyon owed him $800 and Mr. Fitzgerald $700. He told me they hadn’t been paying, interest. That is what he told me. ’’

The witness was mistaken as to the amounts, but the defendants themselves were showing that the decedent referred to the monies secured by the mortgages.

It is far, therefore, from being made clear that this was a gift by way of advancement; and it is equally clear that it was not a gift inter vivos. The same testimony that shows it was not an adavncement, shows it was not a gift inter vivos. To be such it must be clear that there was a gift and delivery of the mone^ to take effect at once. Nor would it be a gift eausa mortis, because obligations were taken for the money, and were held by the decedent until his death.

We are compelled to come to this conclusion. We have examined this case thoroughly, and would be pleased if we could save to these poor people their homes, because we are convinced the decedent intended to give them this money, but ignorantly failed to legally carry out that intent, but unfortunately we are unable tc do it.

Judgment must be taken for the plaintiff in each case.


author: Caldwell, J, Hale, J.,

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ
    THE LAKE SHORE & MICHIGAN SOUTHERN R.R. v. AUGUST E. SCHADE, ADMINISTRATOR OF GEORGE KIRKHOPE.

      Railroad — High 'rate of speed at R. R. crossing outside of municipalities — Not negligence—

    (1.) Tt is not negligence per se for a railroad company to run its train at a high rate of speed, in the absence of any statute governing the same, across road crossings outside of municipalities. Same — Duty to exercise ordinary care — Question for jury—
    (2.) The railroad company, in running its trains across such crossings, must exercise ordinary care; and the question whether it exercised such ordinary care is properly submitted to the jury, and the jury, in determining that question, has a right to take into consideration tbe condition of the crossing, its dangers, the want of a flagman or gate, the obstruction to the view of the traveller, the absence of the ringing of the bell or sounding of the whistle, and all of the facts and circumstances surrounding the crossing at the time.

      Same — Surrounding conditions—
    (3.) If the circumstances and facts surrounding the crossing at the time required the railroad company, in the exercise of ordinary care, to slacken the speed of its train, then it must do so; and its neglect to so do and the running of the train ata high rate of speed would be negligence.

      Negligence of party going on track in front of approaching train —Duty of R. R.—
    (4.) If the decedent in this case was'negligent in going upon the track in the manner and at the time he did, yet ifjthe engineer in charge of the train ought, by the exercise of ordinary care, to have seen the plaintiff in his perilous position and could^by the exercise of ordinary care,' have stopped or checked the speed o.f the train so as to avoid the collision, and failed to do so, it was negligence for which the company is liable, notwithstanding the negligence of the decedent in going upon ¿the track.
    Same—
    (5.) If plaintiff was negligent in going upon the track as he did, ' yet if after such negligence the persons in charge of the train,by the exercise of ordinary care, could have seen the plaintiff in his dangerous position and stopped or checked the speedTof the train and avoided the injury, and they failed to do^so, they were guilty of negligence; and such negligeneejis the proximate cause of the injury,and the railroad company is4iable.

      Testimony as to failure to ring bell and blow whistle— When positive testimony—
    (6.) The testimony of the witnesses who testify that they were walking on the track, knew the train was coming, were giving their attention to the train, and that.they heard no whistle or bell, is not negative, but positive testimony.
    Error to tbe Court of Common Pleas of Cuyahoga county.
    This case was commenced by the defendant in error as •plaintiff in the common pleas court of Cuyahoga county, to recover damages against the defendant Railroad Co. plaintiff in error here, for negligently killing George Kirk-hope at a highway grade crossing of the Railroad Co.
    The accident happened about 7 o’clock, in the month of December. The decedent was driving with his son in a one-horse wagon. The road on which he was driving ran nearly parallel with the railroad for some fifty rods, the two gradually coming nearer together until they reached a point where the railroad track and highway were only about thirty feet apart, when the road turned and went at an angle across the railroad track. The railroad track is a double track road. The decedent was driving north. The fast mail train going east upon the north track struck the decedent’s wagon, killing him, his boy and his horse.
    The negligence averred in the petition was:
    That the track was peculiarly dangerous, because the defendant had permitted shrubbery to grow along its right of way, which prevented a person driving upon the highway from seeing an approaching train.
    That the train ran at a negligent rate of speed under the circumstances.
    That no bell was rung or whistle sounded for the crossing.
    That the engineer and fireman in charge of the train neglected to keep a proper lookout ahead, and neglected to ■slacken the train and avoid the injury.
   Caldwell, J,

George Kirkhope was killed at a point somewhere near Noble on the Lake Shore & Michigan Southern R. R., while crossing the railroad track, he being upon the highway. He was riding in a wagon, and his son was with him. The train ran into the wagon, and Kirkhope and his son were killed. Schade was appointed administrator, and he brings this action.

It is not necessary to state at this time definitely what negligence he complains of, farther than that he complains that the bell was not rung and the whistle not blown, there were no gates, and no flagman at the crossing; that the train was run at a very high and reckless rate of speed, and especially so when taken into connection with the surroundings, and it being difficult for any one to see a train approaching as that train was approaching this crossing.

The case went to trial, and there was a judgment in favor4 of the administrator, and the railroad is here averring error. The averments are that the jury were not justified in finding the verdict which they found, there being special findings as to some matters; and in the next place that the approximate cause of the injury was negligence of the deceased, and not of the railroad company; that the court erred in submitting to the jury the question of whether the railroad company was guilty of negligence in not seeing the deceased upon the track. It is averred that there was error in the charge as to the rate of speed at which the railroad company had a right to run this train. It is averred that there were errors in refusing to give certain requests.

In the order of the argument, the first error complained of in the charge is that the attorneys made a request and it was this:

“That the defendant company in determining the rate of speed at which this train should run — such rate being reasonable and proper in view of the objects to be accomplished by the company outside of municipalities in this state — is not bound to consider the increased risk to persons at road crossings, or lessen the speed of its trains at such crossing on that account; and that if there was nothing in the rate of speed of the train while approaching the road crossing in controversy, inconsistent with the general and legitimate conduct of the business of the defendant, that then in that case such rate of speed can not of itself be an act of negligence for which the defendant is responsible in this action.” •

It is claimed that that charge was not given, nor anything that is its equivalent. The request is based upon the fact that the legislature not having controlled the rate of speed, not having determined by any statute at what rate of speed railroads should run at crossings in country districts where there is a highway crossing the railroad tracks, and not having required any gates or any flagman at such places, that the rate of speed has been left to the railroad company, and that such rate of speed can be used at these crossings which the railroad company deems proper and right in the prosecution of its business. And it is urged that it materially interfered with these pulbic servants and with the public generally, if trains had to be slackened much at highway crossings; and that the full intent of the legislature is that the railroads should govern this matter by its own rules; and that having determined the rate of speed of their trains, and not having determined that they shall slacken at the crossings or highways, it necessarily follows that crossing the highway at a high rate of speed is not per se negligence. It is claimed that the court did not give that request.

The court in its charge said this:

‘‘It is said the defendant company was guilty of negligence in the rate of speed it was running its train upon that occasion, and in its failure to keep a flagman at the crossing to warn persons approaching the crossing of the approach of the train. The law does not require the defendant company to place a flagman or any other warning than what the evidence shows was at this crossing on this occasion, either at the place of the crossing or the approach of the train. It does not and did not on this occasion limit its rate-of speed at this location or locations similar to it. Whether or not failure to give warning at a crossing other than ringing a bell or blowing a whistle, and whether or not the rate of speed at which the train was run, either one or both, would constitute acts of negligence, depends upon the facts and circumstances surrounding this crossing, the nature and character of it, and the damages incident to the use of the crossing by the defendant company arising from the rate of speed at which it ran its train. I mean by that that it is not necessarily negligence on the part of the railroad company to run its train at a high rate of speed across this crossing, nor necessarily negligence on its part that it did not have a flagman or a man stationed there to warn persons of the approach of the train; but that the high rate of speed and the absence of the flagman are facts to be taken together with every other fact which tends to bear upon the dangerous character of this crossing and the dangers to which the public in the use of the crossing would be subject by the defendant’s use of it. They are questions to be considered by you in determinng whether or not in these respects the defendant company was guilty of negligence. By being guilty of negligence I mean whether or not in running the train at that crossing in the absence of any other warning than they did give, whatever you may find that to be, and considering the nature and character of the crossing and the difficulties that might or might not be in the way of parties seeing the approach of the train; and all other facts concerning it, whether or not the defendant company used ordinary care, such care as an ordinarily prudent person would use under like circumstances in that employment, that business, that place and those surroundings in the running of their train and in the management of their business. This care they are required to use; and it is in these respects the plaintiff says they failed to use that degree of care. Did the rate of speed at which they ran their train amount to a failure to use ordinary care, considering the nature and character of the crossing and of the surroundings, all the facts bearing upon the character and dangers which might be' connected with it. Then whatever the rate of speed mentioned, whatever the surroundings upon the crossing mentioned, whatever the dangers mentioned incident to it, if it was in the exercise of ordinary care in that line of business, considering the locality and circumstances and the business carried on, the dangers incident to the use of it, taking into consideration the exercise of ordinary care on the part of the public .in the use of the highway, it would not be negligence.”

I have read the entire charge upon that subject by the court. In the brief certain portions of it were taken out and not fully set out.

Although the court here has charged that it is not negli gence per se, or not necessarily negligence running at a high rate of speed at crossings of highways, yet the court says to the jury that this railroad is by such rules not exempt from the exercise of ordinary care at such places. In fact, no railroad nor no person under any ordinary circumstances is ever exempt from exerising ordinary care

There may be instances where ordinary care amounts to but very little; but at the same time this railroad was certainly at this eorssing, as at all crossings of highways, bound to exercise towards the public traveling the highway ordinary care. From the fact that it is not negligence per se to run at a high rate of speed, we think that does not exempt the railroad company from the exercise of ordinary care while running at that high rate of speed.

Now, ordinary care in all cases must depend upon the surroundings, must depend upon the dangers of the place to some extent. Ordinary care varies according to the hazards of the undertaking and .the hazards of the circumstances in the exercise of ordinary care. The court in submitting to the jury the circumstances of this case makes it necessary to state here that tb.e circumstances referred to are these: that the railroad company . on its own right of way had allowed brush to grow up between the railroad track and the highway where the highway parallels or nearly parallels the railroad track before approaching this crossing. When near the crossing, the higway turns and goes across the railroad track. Now the railroad company having permitted this brush to grow up on its own land so as to obscure the view of the train approaching upon the track for some distance, is one circumstance which the court refers to especially in the surroundings of this crossing. It will hardly do to say that' the railroad company is in the exercise of ordinary care when it runs its trains on all crossings at a very high rate of speed. There may be circumstances' brought about by the railroad company itself, as it was in this case, where it could hardly be said to be the exercise of ordinary case to be running at a very high rate of speed.

Then we think, although a party when he got near the track could have seen this train,yet there is much evidence in the bill of exceptions tending to show that until he got close to the track, it would be quite impossible for him to see the approach of this particular train, that it would be obscured from view. The court said to the jury substantially this: That while it is not negligence per se to be running on a crossing at a high rate of speed, yet if you find the circumstances are such that this railroad, in the exercise of ordinary care, should have slacked up at this particular crossing and not have run at so high a rate of speed, then I say to you that the railroad company is not excused. And the court submitted the question to the jury whether under all the circumstances, the railroad company was in the exercise of ordinary care at that crossing. It may seem a little dangerous to submit to a jury this question under these particular circumstances, and the court in his charge brings in with it also what the railroad had done to guard this crossing; what it did to protect this party by way of ringing bells and blowing whistles, and it might have been just as well to have charged the jury separately upon these matters, instead of bringing all the acts of negligence alleged in the petition under one general charge. The charge might have been as to the separate acts of negligence averred. But still, considering the whole matter, we think the court did not err under the circumstances of this case. In fact, the supreme court has said that it would be negligence for a railroad to run its train on a crossing where the approach of the train is obscured from view by anything it may have placed on its own tracks, as for instance other cars; that they would be called upon to exercise a biger degree of care, and that they could not run at so high a rate of speed under those circumstances as they would if those circumstances did not exist. We think the court has confined the law within that principle, and we do not reverse this case on that allegation of error.

The court charges again:

“One of the charges of negligence in this case is that while George Kirkhope, the deceased, was upon the track in a place of danger from the approaching engine, the engineer or persons in charge of this train could have seen him, and at least have checked the speed of the engine so as to permit him to pass on in safety. We say to you, if by the exercise of ordinary care on the part of the engineer he could have seen the decedent George Kirkhope, upon the track, and the dangerous position he was in, and by the exercise of ordinary care could have stopped his engine in time, or checked its speed so as to have permitted him to escape from this dangerous place, and saved bis life, it was his duty to exercise that care. ”

Then the court gave the law in an exact manner in this way:

“Failure to do it would be negligence, which would permit recovery in this case, although George Kirkhope may have been guilty of negligence in going upon the track and being in that position. That is upon the rule that •where a person sees another in a position of danger, no matter how such person came there, if by the exercise .of ordinary care he could save such person from injury, it is bis duty to do so, and the failure to exercise such care is negligence. ”

This is objected to, because the court has stated the abstract rule of law, given at the last of what I have read, as being good law; but the objection is in the application of it to this particular case. It seems from the evidence that Kirkhope had driven upon this track as he approached it, and as he was about half way across the track on which the train was running, the wagon was struck about the center — his horse apparently had gotten over. George Kirkhope and his son and the horse were all killed. The wagon was broken in two in the center, one part being left on one side of the train and the other on the other side.

The evidence is that the engineer did not see him on the track till he was within about twenty feet of him. Then there is evidence on the part of the engineer that with the head light he could distinguish objects 300 feet ahead of the train, and yet he did not see this object upon the track till he was within twenty feet of it. This train was running at a very rapid speed, and the evidence had a tendency to show that if he had been looking when 200 or 300 feet away, he would have seen Kirkhope upon the track or in the place of danger; and there is evidence tending to show that if he had been looking at that time, he would have seen him. That is, he could see by his head light to distinguish objects 300 feet ahead of his train. And there is evidence tending to show that if he had slowed up when at that point where there is evidence tending to show he might have seen the 'deceased, that it would have given the deceased time to have got clear of the track. Under that testimony the court charged that if Kirkhope was negligent in getting upon the track, and got upon the track when he could have seen this train approaching, and should have seen it, notwithstanding that position of error, if the engineer could have saved him after he saw him there, then the company ' would be negligent. He went further and said that if in the exercise of ordinary care the engineer could have seen him in time — not that he did, but if he could have seen him in time to have saved his life he was negligent if he did not do so. This part is objected to. It is claimed the law does not warrant that charge; that the responsibility of a railroad company under such circumstances is that it shall do all that is possible in the exercise of ordinary care after a party is seen in a' position of danger, not after he might have been seen. If it is the law that a party is guilty of negligence after he might have seen, then it might be urged that parties might often be held responsible when no danger was expected and none was apparent, and that they must be upon such continual looking for danger that it would interfere with the proper prosecution of the business of the defendant. I have seen this objection, stated in a text book, to this rule being extended to what might have been seen.

Now the case in 49 Ohio St., Railroad Company v. Kassen, which has been frequently cited to this court of late, is a case where a party fell off a train,or got off a train,and waa injured. It was purely his own negligence. The parties on the train he fell from knew of his helpless condition, and went on and paid no attention to him. They did not report it to the company, and did nothing to get him out of his place of danger, Another train came along, not knowing of his condition, and injured him, and the court there seems to justify, at least' in the opinion of the majority of us, the rule of law in this state, that a defendant in cases of this character is liable when he sees the plaintiff •in a place' of danger, or when the plaintiff is in a place of danger, not only from the time he sees him, but from the time he should have seen him in the exercise of oedinary care. In the Ekssen case the lapse of time in which the railroad company could act to save him, was long. There may be cases where the parties act so nearly at the same moment that the court can say, as a matter of law, that there was no time nor opportunity for the defendant to do anything to save the plaintiff from the danger in which he negligently placed himself. Many cases will be found between these extremes, as to time and opportunity. If the evidence tends to 3how that there is time and opportunity, after defendant becomes aware, or by the exercise of ordinary care would know of the peril of plaintiff, to save him from injury, then the court should leave to the jury the question of whether or not the defendant acted with due care in trying to save plaintiff from injury. If the time is long, as in the Kassen case, and the defendant does nothing, knowing the danger of plaintiff, then,all will agree,the defendant is liable. That liability does not depend upon the time, alone. Time and opportunity, if long and prominent, only more clearly mark and emphasize the proximate cause of injury. As time and opportunity lessen, the proximate cause may become more uncertain. Yet it is the province of the jury to say whether they exist, or not. It might be said in behalf of this rule that the railroad company is never excused from the exercise of ordinary care, Here is a pkce of danger. It is the duty of any one approaching a railroad crossing upon a highway to look and listen and use his senses and care commensurate or proportioned to the danger he is about to undertake — that of crossing a railroad track. Now, to say that a railroad company may run when approaching a place that is dangerous to the public, or to say that when. it sees a person and then does all it can to save his life, is that the exercise of ordinary care? Every one, I think, and the majority of this court think it is not the exercise of ordinary care; that a railroad company is called upon when approaching a place of this kind to keep a lookout consistent with the duties of the employes, and watch to see that no injury is done.' There was evidence tending to show that this engineer had not complied with that principle of law. Yet I feel for one that it was his duty to have done that, and that no circumstances are shown in the testimony of this case that would excuse the engineer from that duty. The only excuse offered is that the door was open to give fuel to the fire, that the light shone in his eye and he could not well see ahead under those circumstances; that this door was open at this particular time, and he says the door is open a good deal of the time, more than half the time, receiving fuel and taking care of the fire; and it would seem that if the railroad has no better arrangement for protecting the public and for allowing the engineer to exercise ordinary care under such circumstances, that that would be an act of negligence of itself, although it is not complained of in this case.

It may be said that the decedent was guilty of negligence, and the jury certainly would be warranted in finding that he was guilty of negligence before he drove onto this track. The evidence tends to show that he might have seen this train, and if he had performed his duty,that he would have seen it. He could hardly help seeing the head-light, and there is no question but that he is guilty of contributory negligence in going on the track under those circumstances and under this evidence. I feel we can not say that although he was guilty of that negligence, although he did not look, because if he had looked he would have seen the train, and according to the case in 28 Ohio St., to say he looked, if he were living, would be simply to say that a man looks at the sun and yet don’t see the sun, for the train must have bqen in plain view at that time. But although he has been guilty of all this negligence, getting on the track in the most careless manner, yet if the trainmen, in the exercise of ordinary care, had time and opportunity to see, and if the evidence’shows that there was opportunity, as it does in this case — or has a tendency to show in this case — that he had opportunity to check that train and save the life of the person in danger, we think it was his duty to do that, and where that duty was neglected it was negligence not to see, and it becomes the approximate cause of the injury; and that being the approximate cause of the injury it throws the liability or responsibility upon the railroad company.

Now it is said in this case that there were errors on the part of the court to. refuse to charge certain requests. We have examined these requests, and without reading them now, we find no error in refusing these requests.

In the next place,it is said that the verdict is against the evidence so much so that this case should be reversed on that ground. This proposition of law has been argued to support this principle: persons testify they did not hear the whistle or the bell; the trainmen testify of the blowing of the whistle and the ringing of the bell. Here is a conflict of testimony; yet it is urged that there is no conflict between positive testimony as one person says he did hear the bell ring, and another person testifies he did not hear it; and there being no conflict between such testimony,it is urged that the evidence is nearly all, if not quite all, that the bell did ring and the whistle did blow. But this testimony, when we come to examine it, is not exactly of this character. There were persons walking on this track toward Noble, or toward Nottingham, I am not sure which; but they were walking upon the track and heard the whistle of this train, and knew it was about time for it tu come. They heard it whistle at Nottingham in the yard or at the station. There were several road corssings between where they were and- Nottingham', and they were listening for- the ■approach of that train and paying particular-attention, a;nd they say that the bell did not rine at any of -these road crossings, nor did the whistle blow; and they testify the ■same as to this crossing here. That is not negative testimony. Where a person testifies that he was looking. or listening and paying particular attention to a certain thing as to whether the bell rings or not, and then testifies as to • that that it did ring or that it did not ring, one is as positive as the other. This testimony assumes that character of positive testimony, and it did raise a conflict before the jury, and the evidence is of that character that we feel we can not disturb this verdict under the evidence,. We find no error in this record. The case is affirmed, and the judgment is affirmed

Hale, J.,

dissenting:

I have been unable to concur with the majority of this court in the sustaining as applicable to this case. It has been so fully discussed by our presiding judge that it is the duty of a railroad company, in case a traveler was negligent, to have saved him if by ordinary care it could have been done. The charge as given I have no sort of disposition or desire in any shape to criticize. Every dictate. of humanity, every reason that could be suggested, would sustain the decision rendered in the case here cited in 49 Ohio St., Railroad against Kassen. It was clearly right. The only doubt that remains in my mind is whether the principles there announced should be applied to a case of this kind; whether the rule applies- in case of a collision at a railroad crossing between the traveler and the train running upon the track, where nothing whatever appears in the case in fact which shows that the: employes on the train had a better opportunity of seeing the man upon the crossing than the man upon the crossing-had of seeing the train. . I .concede that the railroad company was negligent in not looking out for the traveler, and not using the ordinary means to save him. I concede that. But on the supposition that the company was negligent in not discovering the traveler, supposing.you say a company by ordinary means could have discovered the traveler, you must also say that the traveler by the use of ordinary care-could have saved himself from passing in front of that train. And where the two exist, negligence of the company in running its train upon the traveler without seeing him, and the traveler going on the track without seeing the approaching train, I think that these two causes are the approximate cuase of the injury; and they can’t complain of the railroad company because the negligence of the two combined was-the approximate cause of the injury. I don’t think it was-intended by the supreme court to apply this rule and principle to an ordinary case of a collision at a railroad crossing. In every case that has preceded this, where the facts are-similar to the one we now have, the courts have never used' the expression “although the traveler was guilty of negligence in being on the track, the company after it became-aware of its presence, could by ordinary care have saved him’’. Then there is an intervening cause, and it is clearly .the duty of the company to have done it. If the traveler is: upon the track without negligence on his part, then he can recover. If the traveler is upon the track negligently, and' the company’s employes discover him in season and by ordinary care, then he may recover. But where it is the negligence of the traveler going on the track and not being-discovered, then I think that is the "approximate cause' of the injury, and no recovery can be had by him. While-fully approving of the doctrine laid down in 49 Ohio St., I do not believe it should have any application to a case of this kind. In that case, you remember, the traveler walked off a train. He is left there, lying upon the track, uncon scious and disabled. Another train comes and kills him, The court,in charging the jury,said there was no negligence on the part of the train that killed him; and it says the only •question left in this case therefore, for you to determine, is whether the company had notice through the employes of the train from which he fell that the man had fallen upon the track. This makes the whole thing turn upon whether they had notice or not, or ought to have been charged with notice. Clearly, that was right. But I can not see how it can have application to a case of this kind. That is all I desire to say. I think this question is one of very great importance. Almost superlative importance. If it is to be •applied in every case of collision at crossings, it is a rule of law that is somewhat new.

M. B. Dickey, for Plaintiff in Error.

E. J. Pinney, and C. A: Sheldon, for Defendant in Error.

(The judgment of the court jn this case was affirmed by the supreme court without report, November 16, 1897.)