text:
    LIABILITY FOR DEATH OF A FREIGHT CONDUCTOR WHO FELL FROM HIS TRAIN.
    [Circuit Court of Huron County.]
    Mary Crawford v. New York, Chicago & St. Louis Railroad Co.
    Decided, 1901.

      Railways — Negligence—Yoluntary Assumption of Risk by Conductor— In Leaving His Caboose to Observe Signal Lights — And in Using Defectively Equipped Caboose — Delay in Changing Lights — Sudden Jerk of Train — Ballast Along Side of the Track — Jury Must Not Cuess at Cause of Accident.

    A freight conductor, who had used for more than a year without complaint a caboose defectively equipped for safety, stepped from the caboose, contrary to the rules of the company, upon the car next ahead, which was a gondola, for the purpose of observing whether the light at the station the train was approaching showed red or white, and in attempting to return to the caboose fell between the cars and was run over and killed; Held:

    1. That he had assumed the risk of an improperly equipped caboose, and also the risk of going onto the gondola car.
    2. That the uncertainty whether he fell between the cars by reason of a misstep, or a jerk of the train, would not permit of a guess by the jury that his fall was due to a jerk of the train; and moreover a jerk of' the train was liable to occur, and he should have been on his guard expecting it to occur.
    3. That the presence of ballast piled a foot or less high alongside of the track was not an impediment to his escaping from between •the wheels, which were upon him in an instant rendering escape impossible under any circumstances.

      Hull, J.; Haynes, J., and Mooney, J. (sitting in place of Parker, J.), concur.
   Plaintiff in error in this action was plaintiff below and judgment having been rendered against her in the court of common pleas, this proceeding in error is prosecuted to reverse that judgment.

She brought her action as administratrix of the estate of John M. Crawford, deceased, under the statute to recover for the death of Crawford, who was the husband of the plaintiff, and whose death, it is claimed, was caused by the negligence of the railroad company.

The accident in which Crawford lost his life occurred in May, 1898. He was for a long time prior to the accident employed by the railroad company, and at the time of his death was a freight conductor and had been for some time prior to his death. He was the conductor of the train in question, and operated the caboose from which he fell for about a year prior to his death.

On the night of the accident he left Bellevue with his train about 11 o’clock or a little after, proceeding eastward. When they were near the station at Kimball, which is a few miles east of Bellevue, Crawford was in the caboose, .the train slackened its speed as they approached the station of Kimball, which is also a crossing of the Nickel Plate (the name by which defendant is called) with the Baltimore & Ohio Railroad. The signal light at the station, as they approached, was red, which, indicated, as long as it continued red, that the train was to stop at that station for orders, and pursuant to this signal, as the train approached the station, the engineer put on the brakes and slackened the speed of the train.

Without, at this time, going into the details of the accident, I will say that Crawford was sitting in the caboose as they approached the station, and before they reached the station or crossing he stepped out of the caboose onto, or across onto, a gondola freight car which was just ahead of the caboose, and while there he attempted to look out to see how the light was. There was a brakeman .there also by the name of Mahoney, and while at this place and in this position the light was changed from red to white, the white light meaning that the train might proceed. Crawford then started back to the caboose, and as he was going back in some way he fell off the train and was run over, probably by the four wheels on the south side of the caboose, and when the train stopped, it backed up a little so that the hind wheel of the hind truck ran over him again and he was instantly killed, or died within a few minutes after his body was taken from this position, between the wheels.

There are various acts of negligence alleged and complained of against the railroad company, which it was claimed by the plaintiff was the cause of the death of Crawford.

The case was tried in the court of common pleas to a jury, and at the conclusion of the testimony for the plaintiff, upon the motion of the defendant, the jury was instructed to return a verdict in favor of the defendant, which was accordingly done and judgment entered thereon. It is this judgment that is sought to be reversed in this proceeding in error.

The amended petition, after setting forth in detail the grievances of which the plaintiff complains, contains a brief summary of the alleged negligence of the defendant, which is as follows:

“The plaintiff says that said Crawford was without fault or negligence upon his part and that the injury was caused by and on account of the negligent acts of the defendant in the following particulars, to-wit:
“First. In indicating at said station of Kimball by said red light that there were orders there for said train, when in fact there were no orders at said station for said train.
“Second. In leaving said gravel along the side of said track for the length of time described in this petition.
“Third. In starting said train suddenly and without warning after having given a signal to stop said train for the purpose of receiving said orders.
“Fourth. In said operator giving to said engineer the signal to proceed without requiring him to come to a full stop, and giving him the said clearance card in accordance with the rule described in this petition.
“Fifth. In not providing and enforcing a rule requiring said engineer to give a signal by whistle or otherwise that he was about to increase the speed of said train, suddenly after having given a signal to stop for the purpose of receiving said orders.
“Sixth. In using upon said railway the caboose that was defective, in not having at each end a sufficient platform and a hand-rail for use upon occasion similar to the one described in this petition.
‘ ‘ Seventh. In not providing a step at the end of such caboose upon which the said J. M. Crawford could 'Stand when about to alight from said caboose for the purpose of receiving said orders; and
‘ ‘ Eight. Not providing at the end of said caboose a guard or rail to which the said J. M. Crawford could cling when about to alight from said caboose for the purpose of receiving said orders. ’ ’

The error complained, which practically covers the whole case, is the action of the court in taking the ease away from the jury.

The question is whether, as the evidence stood at the conclusion of plaintiff’s testimony, there was any evidence which ought, under the rules of law, to have been submitted to the jury. If there was no evidence to show negligence an the part of the railroad company, or, if there was evidence which showed, as a matter of law, that the plaintiff’s decedent himself was guilty of contributory negligence, then as a matter of law the court properly instructed the jury to return a verdict in favor of the defendant.

It will be well to consider first just what the situation was at the time of the accident. As I have said, Crawford left Bellevue with his train about 11 o’clock that night. As the train approached Kimball, the station in question, which is a few miles east of Bellevue, he was sitting in the caboose looking out of the window from the side of the car, and from that point could observe the light as they approached the station, and as the train approached the station the engineer gave a long whistle, a signal to stop, and slackened the speed of the train, the signal light at the station being red. The rules of the company provided that the light should be kept red at all times except when a signal was given to the train that there were no orders for it and that it might proceed; that is to say, the proper color for the light to be at all times was red, and if there was no reason why the train should stop, if there were no orders for it, then the operator changed the color to white and the train might proceed.

Then, the light being red, as the train approached, the engineer slackened and the conductor could have seen that the light was red. He knew that unless the light was changed, the train would stop for orders which it would be his duty to get.

The brakeman, Mahoney, was sitting on the gondola ear just ahead of the caboose. The door in the end of the caboose was open, and as Crawford sat in his car checking up his bills near the window, instead, apparently, of taking particular pains to look at the light himself, he called to Mahoney and asked him how the light was, and Mahoney told him it was red, and then, apparently wishing to see for himself, he came out at the end door and stepped across onto the gondola car. There was no platform on the end of the car. It was a box freight car that had been made over into a caboose, and there was nothing there except a narrow step over the draw-bar, probably about eighteen inches wide. He stepped onto that and crossed over to the gondola car and sat down on the edge of the gondola and looked around the corner or end of the car to look ahead for himself and see what the color of the light was, the brakeman having said to him before, as the record shows, “it is red now.”

Mahoney testifies that Crawford came out of the caboose and looked out, and as he looked out, Mahoney testifies, “I says, all right, it is white. ’ ’ Then he started back into the caboose. The train from the time they first began to slacken speed, as- they approached the station — during all that time, the train was continuing to slacken, and we think the record shows very clearly that the train did not stop until after Crawford fell off, although there may be a word here and there in Mahoney’s testimony which might indicate that it did, but he evidently did not mean to say that, as shown by his whole testimony. - The train was continuing to slacken all the time, and Mr. Crawford knew that if the light remained red, that the train would come to, and was required to come to a full stop, but if the light turned to white it would proceed without stopping for orders.

The evidence clearly shows that it was the custom for this train to proceed without stopping if the light changed from red to white. We are not able to say, upon examination of the rules, that would be a violation of the rules, if the light was changed from red to white, although the light had remained red until the train was nearly ready to stop.

Mahoney looked at the light after Crawford came out on the car and said, “All right, it is white.” Crawford then knew that the train would go ahead. He knew that from the rules. He know that from custom, and his conduct shows that he knew it, for he at once started back into the caboose upon this information from Mahoney, and he saw or could have seen the light himself.

As Crawford started back into the caboose the engineer apparently was putting on the air and it caused the cars to run together. Mahoney heard the noise and Crawford, being there, must have heard the same thing that Mahoney did, and Mahoney called out to Crawford and said, “Look out, John.” Just at that time, or just before that, John had started back toward the caboose. Mahoney says, “I says, ‘look out, John,’ and with those words I braced myself and the next thing I heard was the rattling of his lamp and he says the caboose fell back on the rail. As the caboose went onto the rail, I hollered and asked him if he was hurt and the next place he was out on the ground. ’ ’ He got off, and soon after he got off the train stopped and then started up again, and he signalled the train then to stop and they stopped and he found Crawford’s body, as I have already stated, between two wheels, the south wheels of the rear truck. The four wheels had passed over him, then the train had backed a little and the last wheel passed over him again.

There are, as I have said, several grounds of negligence alleged, one of the grounds being that there was no rule of the company requiring the engineer to give a signal when he was about to stop or start his train upon an occasion of this kind, but there was a rule, however, forbidding his starting unless the conductor gave him a signal, but there was no rule requiring him to give a signal when about to stop his train suddenly, and it is argued by the plaintiff in error that the question should have been left to the jury whether ordinary care required the railroad company to have such a rule. The evidence shows the engineer was trying to stop the train when Crawford fell off, and it is claimed that the danger to trainmen in such stopping of the.train is such that ordinary care requires that there be a rule requiring the engineer to give a signal, or at any rate that it was a proper question to leave to the jury.

There was a rule of the company which required the conductor of a freight train, while his train was in motion, to be in his caboose or on the top of the caboose. Rule No. 243 says that the proper place for the freight conductor while his train is in motion is in the cupola of his train, if it have one, so that he may have a full view of his train and enable him to see that his men perform their duty and know that his brakemen come out promptly when necessary, and he must keep a sharp lookout, etc.

Passing at this time to the other question, as to whether there should have been a rule requiring a signal to be given, and whether the fact that there was not such a rule contributed to Crawford’s injury. As has been suggested, when this train neared the station, perhaps forty or fifty cars away, Crawford knew or by looking out of the window at the side of the ear might have known that the light was red, and that that meant, if it continued red, that his train was to stop; but not caring to rely entirely upon his own observation, for some reason he asked Mahoney, and Mahoney told him that the light was red and he knew that the train, if the light continued red, would stop. Then, to make observation for himself, or so that he might be where he could get off easily, if the light turned to white, he came out and stepped over onto the gondola ear, the light still being red and the train during all of this time slacking in speed and the engineer all this time evidently putting on the brakes for the purpose of stopping the train and finally putting them on with such force that the cars were bumped together, as Mahoney testifies, and finally Crawford is notified by Mahoney calling out to him to “look out,” the train was about to stop, that there might be danger. Crawford at that time being about to step from the gondola car to the caboose.

With, all of these circumstances, with this notice to Crawford that the train was about to stop, with his knowledge of the rules that it was required to stop if the light was red, with his experience as a railroad man, as an old railroad man, knowing that the train was in the very act of stopping, it seems to us that a signal from the locomotive would not have given Crawford any further notice than he then had of the fact that the train was about to stop. There was every sign, every notice, every indication that could be given, that the train was stopping pursuant to the order that was given by the red light, and the whistling or the ringing of the bell from the locomotive could have given him no additional information — could have made no difference with his conduct upon that occasion. It is claimed by counsel for plaintiff in error that ordinary care might require the giving of such signal; and it is claimed the question should have been submitted to the jury as to whether ordinary care on the part of the railroad-company required a rule compelling such signal. But if the absence of such a signal did not contribute in any way to the injury and death of Crawford, it was not, as the term is sometimes used, “legal negligence” so far as this case is concerned, that is, negligence directly causing the injury and death complained of. And we find the absence of the signal here or the absence of the rule did not contribute in any way to the injury and death of Crawford.

If, on the other hand, the train had actually stopped on account of the red signal being given, Crawford had notice that the light had been changed from red to white, and he knew that the train would proceed immediately upon its journey and would start at once after the light was changed from red to white. The evidence shows clearly that that was the custom upon this train, although it might be argued that this was a technical violation of the rule. Still, upon an examination of that rule it is not clear that it would be — the rule is No. 522, page 98 of the book of rules:

“A fixed signal must be used at each train order office which shall display red at all times where there is an operator on duty, except when changed to white, to allow a train to pass after getting orders, or for which there are no orders. When red is displayed all trains must come to a full stop and not proceed as long as red is displayed, unless furnished with a clearance card on specified form, stating over the operator’s signature that he has ho orders for that train.”

It is urged that there should have been a clearance card given. But the rule, provides that trains shall not proceed so long as red is displayed unless furnished with a clearance card on a specified form. But red was no longer displayed when the light was changed from red to white. The rule proceeds:

“The signal must be returned to red as soon as a train has passed. It must only be fastened at red when no operator is on duty.”

' But aside from any close construction of this rule, it appears from the testimony that it was the custom of this train, when the light was changed, for the train at once to proceed. It was their custom, as the uncontradicted testimony shows, to watch for this light, as the train approached, and if it was red, to watch to see whether it would change to white. The light on the night in question did not change to white until the locomotive was about opposite the signal station, opposite the light, or perhaps a little past the light. So that in either event, as we view it, whether the train was nearly stopped, or about to stop apparently, or whether it had actually stopped and started again, Crawford, with his knowledge of this rule and of the custom, was fully notified of exactly what he might expect the train to do, and that the absence of the signal did not contribute in any degree to his injury.

It is urged also that there was negligence in the operator in ' displaying the red light as long as he did and not changing it to white; that he should have changed the light sooner, and that holding it red so lpng, indicated there were orders while there were none.

If this were true, it does not seem to us that that was the proximate cause of Crawford’s injury. Holding the light red did not cause this injury, nor was it caused by changing it to white. Crawford may have taken a position upon the outside of the car which he would not otherwise have taken if the light had turned to white sooner than it did. But we are unable to see that what was done with this light could be regarded as the proximate cause of his injury. As to his going out on the car, his proper place, under the rules, was in the caboose; still, under all the circumstances, it is not necessary to hold that he was guilty of contributory negligence in going outside of the ear. Perhaps it would be the natural thing for him to do. Perhaps it was customary, but still if he went outside of the ear, under those circumstances, or to the end of the ear where there was no platform, on to a freight car, where the rules of the company did not require him to go, and where he was forbidden to go, it would seem as though he took his own chances as to an accident of this kind happening to him.

It appears from some of the testimony — an answer or two that we find in the record, that it may have been the custom to go ahead over the train and get off somewhere near the middle of the train. Probably it was the custom to go ahead and get off and get orders without compelling the train to come to a full stop. There was no rule requiring this, but a strict reading of the rule would require the conductor to be in the caboose.

As to the caboose itself, it is urged that it was defectively constructed and it must be said that a box freight car remodeled as this one was can hardly be commended as a caboose for men to use in the performance of their duty upon the road. Still it was a ear that was in general use upon the road. Crawford had used this very car for over a year and he was fully acquainted with the ear and the defects complained of, if any, and that there was no platform at the end of the car; there were no handholds to take hold of and nothing to save a man, or prevent him from falling off, and it is true that there was nothing there but this narrow step to which I have referred; it evidently was not the purpose or intention that the conductor and brakemen should stand there.

There was, however, at the side of the car, a door; a door and two windows on each side, and the door was provided with a step and with a hand-hold, as shown by one of the pictures attached to the bill of exceptions. The testimony shows that it was the intention that the men should get on and off at the side and not at the end, where it had no platform of any kind, or guard, and only this step about eight inches wide and perhaps eighteen inches long crosswise of the. ear. But having used this car for this long period of time without complaint and having full knowledge of the defects in the car, it seems to us that under the well established rules of law he assumed whatever risk there was in continuing to occupy and use this car. It was something of which he had full knowledge and had had for more than a year.

But it does not appear — it is not established by the evidence— that Crawford was thrown off the car by the reason of any jar. He fell off about that time, and he may have been thrown off by the jar, or he may have missed his footing as he stepped from one car to the other and may have fallen off. All that Mahoney knows is that shortly after he said “look out, and heard the rattling of his lantern,” Crawford had fallen off the car. He may have been thrown off by the jar, it is true, but that he was thrown off by the jar is hardly established by the evidence.

The Supreme Court has said in a recent ease that where an injury may have been caused by one of the two things, if one of them might have happened through one of the causes without any negligence on the part of the defendant, the' jury would not be permitted to guess that it happened on account of the other.

It was urged further that there was negligence in leaving gravel alongside the track for some two or three weeks before the accident, and that this contributed to the injury, and that if it had not been for the gravel, Crawford might not have been killed. Gravel had been thrown off from the cars in the ordinary course of business for the use of the railroad company and left for a distance of forty or fifty car lengths alongside the track, at the height of not more than a foot, and in some places lower. Where Crawford was killed, according to the testimony, it was four, five or sis inches in depth. Gravel had been thrown off for ballast for the road. This track was not in the yards of the company; it was a railroad crossing simply, and we are of the opinion that it was not negligence on the part of the railroad company to leave this amount of gravel which had been put there for use, for two or three weeks, alongside the railroad track. It could not have been anticipated that a man would fall off at this point and fall onto the track between the rails in that way, and that this gravel would or might interfere with his getting out from under the wheels, nor does it appear to us that the gravel did in fact interfere or prevent Crawford from escaping injury.

When he was found his head was resting outside the rail upon the gravel some five or six inches in height, while his legs and the lower part of his body were between the rails, and the car passed across the middle of his body, crushing him. Iiis arms were thrown in such a way as perhaps might indicate that he had tried to ward off the wheels and to pull himself out from under them. But lying or falling in this position, with the train in motion, the greater part of his body between the rails, his head projecting for some distance over upon the gravel, we are unable to see how this amount of gravel at that point contributed in any way to his injury or prevented him from escaping.

The injury happened in an instant of time. He fell immediately in front of the wheels of this caboose and they were on him in an instant, in the fraction of a second.

After a full review of the record in this case, unfortunate as this accident was and terrible a calamity as it was, we are unable to see that there was any evidence tending to show negligence on the part of the railroad company at the time of the accident that contributed to Crawford’s injury or any negligence, or any risk in regard to the construction of the car that he did not himself waive and assume.

We find then that the court did right, under the rules of law, in directing a verdict in favor of the defendant.

We have examined the exceptions that were taken during the trial of the case, and while some of the testimony to which objection was sustained might have been admitted, we think, as to the custom of stopping at this point without putting in evidence the written rule, still, in the end, that testimony substantially was admitted and the rules themselves were put in evidence so that the plaintiff had the opportunity to present his case fully, and no claim is made here that the plaintiff was prevented by the court from presenting the evidence and all the facts that he cared to present in order to make out his case.

Jesse Vickery and Horace Andrews, for plaintiff in error.

C. P. & L. W. Wickham, for defendant in error.

We find no error prejudicial to the plaintiff in any ruling of the court upon the trial, and the judgment of the court of common pleas will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    PRESUMPTION OF DEATH.
    [Circuit Court of Lorain County.]
    Travelers’ Insurance Co. v. Mary Rosch.

    Decided, May 2, 1902.

      Accident Insurance — Disappearance of the Insured in Mid Ocean — Conclusive Presumption of Death from Accidental Drowning — Special Charges Before Argument — Section 5190 Not Peremptory, When— “Fair" Preponderance of Evidence.

    1. Where one was seen on a steamer in mid ocean at 10 o’clock at night, and was not found the next day, though diligent search for him was made, and has never been seen since either living or dead, it is a necessary conclusion that the man is dead.
    2. It is also a necessary conclusion that he died by drowning, either from accident or the violence of another, or by easting himself into the sea; and the presumption being against suicide, a jury would be warranted in finding that he died by drowning, and that as to him the drowning was an accident.
    3. If a special charge is of such a character that no prejudice would result from a refusal to give it to the jury at all, it is not prejudicial to decline to give it before argument, notwithstanding the peremptory interpretation which has been placed on Section 5190.
    4. A preponderance of the evidence being sufficient in a civil case, and the word “fair” having been construed as equivalent to “clear,” a court is justified in refusing to give a special charge as written, when it contains the words “fair preponderance of the evidence.”

      Marvin, J. Caldwell, J., and Hale, J., concur.
    Heard on error.

       Affirmed by the Supreme Court without report, December 8, 1903.

   The ease of the Travelers’ Insurance Company of Hartford, Connecticut, against Mary Rosch is here upon a petition in error, seeking to reverse a judgment which Mary Rosch obtained against the insurance company in a case tried in the court of common pleas of this county, it being a jury trial. With the petition in error a bill of exceptions is filed containing all the evidence that was produced in the court of common pleas.

The plaintiff below, Mary Rosch, having obtained a verdict against the defendant, a motion was made by the defendant for a new trial, which was overruled, an exception was taken to that, and it is said there was error on the part of the court in overruling such motion, and error also in the proceedings of the court at the trial.

After the evidence was all introduced, a request was made that certain propositions of law be given in charge to the jury before the argument of counsel. Some of these requests were given before argument, and part, the court said, would be taken under advisement, and later the court would determine whether or not to give these. After argument the court did give the last proposition, to which attention will be called later.

Section 5190, sub-section 5, Revised Statutes, is the one which provides that if request to charge certain propositions shall be made before argument, such propositions shall then be given or refused. This statute was construed in Electric Railroad Co. v. Hawkins, 64 Ohio St., 391.

Before determining whether there was error in declining to give, the proposition which the court did not give before argument, but did give later, a little attention should be given to facts.

John Rosch who was a resident of this city, took passage in June, 1897, upon an ocean steamer, “The Friesland,” at New York, for some port in Germany. Shortly before he embarked on this voyage he took out a policy of insurance in the plaintiff company, which is a corporation authorized to issue accident insurance policies. It insured him against death resulting within ninety days from bodily injuries effected during the term of this insurance through, external, violent and accidental means, and the beneficiary named in the policy is Mary Rosch, the defendant in error.

On the night of June 29, 1897, while the ship was in mid-ocean, John Rosch, who was a steerage passenger with some two hundred other steerage passengers, was seen at ten o ’clock in the evening on that steamer; so far as any evidence here is found he has never been seen since living or dead.

The steamer did not reach Germany for several days after that. Diligent search was made on the morning of June 30 for John Rosch, which was without avail; he was not on the steamer on that morning.

The claim on behalf of the plaintiff below is, that from this it necessarily follows he is dead, and we think that this presumption is well taken. It is possible that Rosch is living, as it is possible that if one sits in this court room and fires a pistol at another, and that other be found immediately thereafter dead with a bullet in his body, that he died of heart failure just before the bullet struck him; but everybody would find, every jury and every sensible man in the world would find in the case last stated that the man died from the bullet wound. And it seems as. though we could not doubt that every sensible man with these facts before him would find this man is dead.

It is said, on the part of the plaintiff in error, that it is but an inference that he is dead. It is an inference, such an inference as carries absolute conviction to every thinking man.

Now it is said that to hold he died by external violence is an inference upon an inference — which ought not to be allowed; but the jury found as they necessarily must have found, that this man was dead.

And if the question had been directly put to them, did he die by drowning? it can hardly be doubted that they would have answered in the affirmative, and if he died by drowning he died by that external violence which is insured against in this policy, unless it was a case of suicide.

The policy provides that if the death is by suicide there can be no recovery.

This man, if he died by drowning, fell into the ocean, either by accident or by violence of somebody else or he cast himself into the ocean. What is the presumption in that case; in favor of suicide or against it? Is there any doubt that the presumption is against suicide and in favor of his having fallen in, either by accident or by some external force applied to him? And if that is so, then there should be a recovery here; the company would be bound.

Upon the facts it seems clear that the jury came to the conclusion to which every other man, who will examine this record would come; that this man died of drowning on that night of June 29 or the morning of June 30, 1897, and that such drowning was the result' of an accident to him.

Now as to the request made to charge before argument.

The case of Electric Railroad Co. v. Hawkins, to which attention has been called, holds as to Section 5190, Revised Statutes, requiring a charge when requested to be made before the argument, that it is peremptory where such request is made. Of course if a request is made to charge some proposition which is not the law, that must be given. But it as said here the court came to the conclusion that what was requested was the law, because it thereafter gave it; but if the giving or withholding of the charge could not by any possibility or by any reasonable probability have affected the result of this case, then it was not prejudicial to refuse to give it before argument.

If it would have been no prejudice to the plaintiff in error to have declined to give it to the jury at all, then it was not prejudicial to decline to give it before the argument.

The charge requested by the defendant below before argument reads in these words:

‘ ‘ Gentlemen of the jury, you will not be warranted in rendering a verdict for the plaintiff unless you shall find from a fair preponderance of the evidence, as I shall hereafter define that term:
“First. That John Rosch died during the time covered by the' policy of insurance, and
“Second. That his death was caused by violent and accidental means.”

It is enough to say as to this, that the request included one thing at least which it is settled, in this court, and I think by the Supreme Court of the state — certainly by this court and by the circuit- court next east of us, the sixth — which the party was not entitled to have given.

It may be said to be technical, but this court and the court of the circuit east of us have held that it is objectionable to charge that “You will not be warranted in rendering a verdict for the plaintiff unless you shall find from a fair preponderance of the evidence,” etc.

Judge Laubie, in one of the cases, discusses to a considerable extent the words “fair preponderance,” and says it means the same as “clear preponderance” of the evidence, which he says is not necessary; that preponderance is enough. So the court would have been justified in refusing that because of the word “fair,” and might have been justified in refusing the entire request for the same reason.

The court did give before argument, that in order to a recovery the jury must find:

First. That John Rosch died during the time covered by the j policy of insurance, and .

Second. That his death was caused by violent and accidental means.

He gave those two. He did not give until after argument the balance: “If you find that he died during such time, but further find that it is just as reasonable to infer, from the facts and circumstances in proof, that he died from voluntarily exposing himself to unnecessary danger as that he died from accidental and violent means, not specifically excepted in the policy, then your verdict must be for defendant.”

That was given later; not given however that it must be done by a fair preponderance of the evidence, but the court gave, “if you find he died during such time,” etc., using the exact language, except as to the word “fair.”

It was not error, prejudicial to the plaintiff in error, for the court to refuse to give in the language requested, just what was requested before the argument. After the argument the court gave the proposition properly, so that there can be no fault found to the prejudice of the plaintiff in error in the charge.

H. H. McKehan, for plaintiff in error.

Metcalf & Cinniger, for defendant in error.

What has already been said indicates what must be done with the ease. The jury were warranted in coming to the conclusion they did from the facts.

There was no error on the part of the court in its refusal to charge before argument the requests in exactly the language they were requested; there was no error in the charge, and the judgment is affirmed.


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    WILLS.
    [Circuit Court of Auglaize County.]
    William Halley et al v. Joseph Hengstler and Sophia Hengstler.
    Decided, 1902.

      Wills — Construction of — Effect of Section 5968 — Abrogating the Rule in Shelly’s Case — Word “Heirs” to be Given its Technical Meaning —Unless a Contrary Intention Appears — Estate of Inheritance— Devise Conveying Estate in Fee.

    1. Section 5968 relating to construction of devises for life limited to heirs, does not establish a hard and fast rule of construction that must resolve all doubtful cases into devises of estates for life with remainder over, but permits courts to give controlling effect to the intention of the testator.
    2. While the word “heirs” is flexible and should be so construed as to give effect to the manifest intention of the testator, it retains its strict technical meaning, unless from the context and other aids of construction it clearly appears that the testator used it in some other sense.
    3. A devise of land to J and N “to be equally divided between them, and to their heirs at their death” conveys an estate in fee simple.
    Day, J., Norris, J., and Parker, J., (of the sixth circuit, sitting in place of Mooney, J.); opinion by Parker, J.

      Heard on error.
   The whole controversy in this case turns upon the construction to be put on the third clause of the will of Samuel Halley, deceased, under which both parties claim. Other clauses of the will are unimportant here, except as their consideration may aid in the construction of this third clause, which reads as follows:

“Third. I will and bequeath to John Halley and Nathaniel Halley, one quarter section of land owned by me in Allen county, Ohio, to be equally divided between them, and to their heirs at their death.”

The will was executed in 1844. The testator died in 1845, seized in fee simple of the land mentioned in this clause. John Halley, mentioned therein, died intestate, in 1896, leaving cer. tain of the plaintiffs his only heirs at law. Nathaniel Ilalley, mentioned in said item, died intestate, in 1898, leaving certain other of the plaintiffs his only heirs at law.

In 1850, John Halley and Nathaniel Halley, by an exchange of quit-claim deeds divided the lands described in said item, each taking a part thereof in severalty.

The defendants claim ownership of said lands under deeds executed by John Halley and Nathaniel Halley and a regular chain of title by a series of conveyances purporting to carry the title down to them as the last grantees.

Plaintiffs contend that by the will aforesaid John Halley and Nathaniel Halley were devised life estates only in said lands and that remainders in fee simple were devised to their heirs, consequently that estates for the lives only of said John Halley and Nathaniel Halley were carried by said conveyances to the defendants, and that upon the deaths of said John Halley and Nathaniel 'Halley, the plaintiffs, as their surviving heirs, came into full title in fee simple and right of possession of and to said lands. The defendants, on the other hand, contend that by force of said item three fee simple estates devolved upon and were vested in said John and Nathaniel upon the decease of the testator, and that such estates have been carried on to them by the conveyances aforesaid.

It will be.observed that this will was executed and took effect after the passage and taking effect of the Wills Act of March 23, 1840, which took effect October 1, 1840 (38 O. L., 120), Section 5968, Revised Statutes, Section 47 whereof' containing the provision that:

' “When lands, tenements or hereditaments are given by will, to any person, for his life, and after his death to his heirs in fee, or by words to that effect, the conveyance shall be construed to vest an estate for life only, in such first taker, and a remainder in fee simple in his heirs” (Swan’s Gen. Stat., 1841, p. 999) which has ever since been a part of the Ohio laws as to wills.

Counsel for plaintiffs base their claim upon the statute, and urge that the language of this' clause of the will comes within its provision, and that if this clause does not define precisely estates to John and Nathaniel for their lives, with remainder at their death to their heirs in fee, it does “by words to that effect” define and limit such estates; and they also urge that if this language of the will standing alone is not to be given that effect by force of the statute, the whole will taken together discloses that the purpose of the testator was to thus limit the estates devised. In support of their contention that the testator has manifested this intention, they lay especial stress upon the second clause of the will, whereby certain other lands are devised to certain other sons of the testator, to-wit:

“Second. I give and bequeath to my two sons, William and Samuel Halley, the farm owned by me in Noble township, Morgan county, Ohio, that I now occupy, to be equally 'divided between two, William and Samuel Halley. ’ ’

They argue that- since in this clause the words ‘£ and to their heirs at their deaths,” or similar words, or words of like import, are not used, and since in Ohio words of inheritance are not necessary to transmit by will a fee simple estate, and the testator is to be presumed to have known the law on this subject, therefore the addition of the words in the third clause must have been with a design and purpose to devise to John and Nathaniel somewhat different estates from those devised to William and Samuel; and that the addition of the words “and to-their heirs at their death” manifests a purpose to cut down the fee simple that would have been sufficiently defined without such addition, and to devise a remainder in fee simple to their heirs. That though the term “heirs” is usually a term of limitation and not of purchase, yet as used here in connection with the words ‘ ‘ at their death, ’ ’ it should be deemed a word of purchase and not of limitation. That the addition of the words “at their death” is equivalent to the use of the words “during their lives,” or “for life,” and were intended to denote the quantum of estate to be devised to John and Nathaniel.

In this brief statement we can not pretend or hope to do justice to the able arguments of counsel for plaintiffs, so well epitomized in their brief, but we seek simply to indicate the points in issue and the line of argument pursued.

It must be remembered that before the adoption of the statute heretofore quoted, the rule in Shelley’s case had been recognized by the courts as a part of the common law in force in Ohio (McFeely v. Moore, 5 Ohio, 464), and the purposes and effect of this statute was to abrogate the rule as to wills (King v. Beck, 12 Ohio, 390, 471; Armstrong v. Zane, 12 Ohio, 287, 290); but the purposes of this law was not and its effect is not to establish a hard and fast rule of construction that must resolve all doubtful cases into devises of estates for life with remainder over, but simply to release us from a rule which carried us to the other extreme, and leave us at liberty to give controlling effect to the intention, of the testator (Carter v. Reddish, 32 Ohio St., 1-17), and certain other rules respecting the construction of wills, and especially as to the use of the word “heirs,” to which we shall advert, were not affected thereby.

Now while the word “heirs,” when us^d in a will, is flexible, and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will (Weston v. Weston, 38 Ohio St., 473, 478), yet it is a technical legal term, and in its primary use and meaning is a word of limitation defining an estate of inheritance, and not a word of purchase, designating a person or class upon whom an estate shall devolve by force of the instrument in which it is used (Paige on Wills, Section 561; Jackson v. Alsop, 34 Atl. Rep., 1106; 67 Conn., 24), and is to be given its strict technical meaning when used in a will, unless from the context or other aids of construction it appears clearly that the testator used it in some other sense. Weston v. Weston, supra; Paige on Wills, supra; Bolton v. Bank, 50 Ohio St., 290; Collins v. Collins, 40 Ohio St., 353; King v. Beck, 15 Ohio, 559, 562, Linton v. Laycock, 33 Ohio St., 128.

Prima facie, therefore, the word “heirs” is to be taken as a word of limitation and not of purchase. We think the clause of the will under consideration does not in terms give the lands to John and Nathaniel “for life,” nor does it in terms give the lands after their deaths to their heirs in fee. It is only by construction, and by holding that the testator has used “words to that effect,” that the will can be given that operation. We are of the opinion that neither the clause in question nor the whole will taken together, makes clear or manifest an intention of the testator to devise life estates only to his sons, with remainders in fee to their heirs.

The added expression “And to their heirs at their death,” though in a sense surplusage or tautological, is, nevertheless, appropriate to describe a fee simple in John and Nathaniel. “At their death, ’ ’ we believe should be regarded as surplusage merely. What it expresses is always understood, since a person can possess and enjoy his lands during his lifetime only. It is evident that the will was not so drawn by a person skilled in the use of legal terminology, since he uses the term “bequeath” where he should have written “devise,” and other imperfections make such lack of skill or exactness apparent. Therefore, we think that much stress should not be laid upon the use of the words “And to their heirs at their death” in the third clause and not •in the second. Having added the words “and their heirs” he may have thought it necessary or at least prudent to add the remainder “at their death,” to make it clear that heirs presumptive should have no interest in or control over the lands while John and Nathaniel lived. So, too, such unskilled person may not have been acquainted with the rule made a statutory rule by Section 5970, Revised Statutes, and may have designed to devise a life estate only by the second clause and a fee simple by the third clause. We do not mean to suggest that a court would be warranted in putting such a construction upon the second clause, but we point out here possible constructions to indicate the insecurity and uncertainty of speculations as to the intention of the testator, and the propriety of holding fast to the rule that the intention of the testator to use the word “heirs” in some other definite sense, must clearly appear before the court will be justified in treating' it as other than a word of limitation.

It is true, as said by counsel for plaintiffs, if the will provided that after the death of John and Nathaniel the lands should go to certain named persons, or even if a person or class of persons were designated as “children,” “grandchildren,” “issue,” or the like, it would carry no more than life estates to John and Nathaniel, with remainder to such persons or class, for such designations would not be words of limitation, merely determining the nature or quantum of the estate devised to the first takers, but they would be words of purchase, designating the persons or class who should take title direct from the devisor under the will. As pointed out, there is a wide difference where use is made of the general collective term “heirs,” signifying all who might inherit from the first takers, ad infinitum,.

We hold that by the third clause of this will John and Nathaniel took an estate in fee simple, and that the judgment of the common pleas was right, and, therefore, it is affirmed.


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    NEGLIGENCE AT A RAILROAD CROSSING IN THE OPEN COUNTRY.
    [Circuit Court of Lake County.]
    Lake Shore & Michigan Southern Railway Co. v. A. G. Reynolds, Administrator.
    Decided, October Term, 1901.

      Railways — Negligence at Country Road Crossings — Company Not Bound to Provide Watchman or Safety Appliance at Such a Place— Failure of One Injured to Use His Faculties — Engineer Not Aware of His Peril — Proximate Cause of the Accident.

    1. A railroad company is under no obligation to take further precautions than those prescribed by statute as to a highway crossing in the open country, where there is an unobstructed view of the tracks for a distance of six or seven hundred feet.
    2. It is error, therefore, to instruct a jury that it is for them to determine whether a watchman or safety appliances should have them provided for such a crossing, particularly where what was said in regard to safety appliances was indefinite and uncértain.
    i!. And it is likewise error to say to the jury that it was the duty of the plaintiff in approaching the crossing to have used his faculties, “unless there was reasonable excuse for his not doing so,” when there was nothing in the testimony upon which an excuse for not looking and listening could be based.
    4. In such a case the railroad company is entitled to an instruction to the effect that it was the duty of the plaintiff to have used his senses of seeing and hearing before attempting to cross, and if he failed to do so, and such failure caused or contributed proximately to his injury, there can be no recovery.
    5. Where one travels for forty feet before reaching the tracks, with a train approaching and in full view, and with nothing else to divert his attention, and is struck by the train, a verdict against the railroad company is not justified. C. H. & D. Ry. v. Kassen, 49 O. S., 230, distinguished; L. S. & M. S. Ry. v. Schade, 15 C. C., 424, and L. S. & M. S. Ry. v. Ehlert, 19 C. C., 177, disapproved.
    Cook, J.; Burrows, J., and Laubie. J., conenr.
    Heard on error.
   Edward C. Corlett, plaintiff’s intestate, was killed on the afternoon of September 15, 1897, while attempting to cross with a horse and buggy the tracks of The Lake Shore & Michigan Southern Railway Company at what is known as “Casement Crossing” about a mile from Painesville, in this county. The crossing is a diagonal one and the highway for a short distance is close to the tracks but not sufficiently near to make it in that respect especially dangerous. Corlett was traveling in a southwesterly direction, the tracks running east and west at that point. The easterly view of the railway from the highway at some points as you approach the crossing is obscured for two or three thousand feet by houses, trees, undergrowth and particularly by a cut and curve; the evidence however conclusively shows that a traveler on the highway, sitting in a buggy as Corlett was at the time he was killed, has a full and unobstructed view eastward of approaching trains for a distance of six to seven hundred feet anywhere from a point forty feet on the highway to the north rail of the north track. No one was in the buggy with Corlett; his horse was not unmanageable; no other train was approaching; no one else was on the highway; the view was not obstructed westward, and he was traveling at a slow rate of speed.

With these conceded facts in the case, two objections are made to the judgment of the court of common pleas: First, That the court erred in its charge to the jury, and, second, that the verdict is against the evidence.

The first objection made to the charge is respecting the necessity of having some appliance at the crossing for the protection of travelers upon the highway. The clause of the charge objected to is as follows:

‘ ‘ There is no rule of law in Ohio requiring a railway company to keep a flagman or watchman at a railroad crossing outside of a municipality and the absence of one is not of itself negligence. But it was the duty of defendant, if it should appear that this particular crossing was exceptionally dangerous, to adopt such measures as common prudence, and a reasonable and just regard for the public safety should dictate to secure to the plaintiff’s decedent a reasonable degree of safety in his proper and legitimate use of the crossing. The court can not say whether or not the crossing in question did require on the part of the defendant any particular appliances to safeguard the public or require any other measures than those taken by the defendant, but it is for you to determine from the evidence under all the circumstances of the ease whether or not the defendant did take such measures at that crossing as common prudence demanded should be taken to secure the plaintiff’s intestate when using said highway at the crossing in a reasonable degree of safety in his right to use the crossing, and in determining that question you have a right to take into consideration the condition of the crossing; its dangers; whether or not a flagman was stationed there; what obstructions there were, if any, to the view; whether or not signals were given, and all the facts and circumstances surrounding the crossing at the time; and if you find by a preponderance of the evidence that the defendant did not use such ordinary care in protecting the decedent at said crossing as common prudence dictated, such want of care on the part of the defendant would be a circumstance which you should consider in determining whether or not the defendant was guilty of negligence, and if you should find that it was the proximate cause of the death of plaintiff’s intestate it would authorize you to return a verdict in favor of the plaintiff. ’ ’

By this clause of the charge the court instructed the jury that if they should find that the crossing was an exceptionally dangerous one, then it was the duty of the company to keep a flagman at the crossiñg, or have some appliance to safeguard the public in the use of the crossing.

As we have stated this crossing was outside the city. The travel upon the highway was no greater than what is usual upon a country road. It was not within yard limits where there was a network of tracks, there being only the two main tracks; the railway company had done nothing to make this crossing exceptionally dangerous; it had placed no obstructions within the danger line interfering with the vision, and the trains were the ordinary through trains of the company. Under such circumstances we think the company was under no obligation to take further precautions than those prescribed by statute.

This case differs entirely from Cleveland, C., C. & I. Railway Co. v. Schneider, 45 Ohio St., 678. In that case the crossing was over a street in the city of Cincinnati; the street was in a populous part of the city and was generally traveled; there were a number of trains which were used for switching which added greatly to the danger of using the crossing. Of such character also was the crossing in the case of Grand Trunk Rd. Co. v. Ives, 144 U. S., 408, referred to by counsel. We are of the opinion therefore in this case that the court erred in charging the jury that they might determine whether or not the company should have kept a watchman at the crossing or used some appliance to safeguard travelers at this crossing. Such was the holding of this court in Lake Shore & Michigan Southern Ry. Co. v. Gaffney, 9 C. C., 33, 45, a case involving this same crossing and which we are still inclined to follow.

Furthermore, the charge was very indefinite and uncertain respecting the subject of appliances. What were the appliances that should have been used to protect travelers? This question was left entirely to the jury. Each juror was left to determine what appliance should have been used. One would think this, and another that, until the conclusion is reached, that at least some appliance should have been adopted by the company. It is a matter of legislation usually when and what appliances should be used to safeguard travelers at a crossing, and to leave to the determination of jurors what appliances should be used would be very dangerous.

The next objection to the charge of the court is to that part of it where the jury is instructed as to the duty of Corlett to use his senses before attempting to cross over the track — the court said to the jury: •

“Now as to the question whether or not Edward C. Corlett was guilty of contributory negligence. You are instructed that ordinary prudence requires that a person in the full possession of his faculties of seeing and hearing when approaching a known railroad crossing use his faculties for the purpose of discovering and avoiding danger from approaching trains, and his failure to do so without reasonable excuse therefor is negligence. It is his duty to use ordinary care under all the circumstances, and if his view was obstructed, that would increase rather than diminish the care which he should use; and as the decedent, Edward C. Corlett, when approaching said railroad crossing, was bound to use his senses, it was his duty to look and listen. ’ ’

That is to say, it was the duty of Corlett to look and listen without there was a reasonable excuse for his not doing so. The instruction is practically the same as the first paragraph of the syllabus of the case of Cleveland, C. & C. Rd. Co. v. Crawford, 24 Ohio St., 631. It was proper in that case because the facts made it applicable, but in this case there was no evidence whatever that there was any excuse for not looking and listening for an approaching train before attempting to cross the tracks. As we have stated, for forty feet at least he -had a plain view of the tracks and the approaching train for six or seven hundred feet. At the speed the train was running and he was traveling, had he looked at any time while he traveled that forty feet, he necessarily must have seen the approaching train. There was nothing to divert his attention. No other train approaching; nothing to the west; no one in his buggy; his horse going quietly along at a slow gait; no other traveler on the road, nothing whatever to excite him, or to cause him not to use his senses for his own protection. Why then say to the jury he should look and listen withovit there was a reasonable excuse for Ms not doing so? The charge simply suggested to the jurors to conjure up an excuse, to ransack their brains for an excuse, to imagine an excuse.

The jury was not instructed to examine the evidence to ascertain if there was an excuse and could not be so instructed, for there was no evidence. In this case the jury should have been told directly that it was the duty of Corlett to look and listen for an approaching train before attempting to drive over the tracks, and if the jury should find that by reason of his failure to do so he drove upon the track and was killed, then the plaintiff could not recover.

Abstract propositions of law should not be given to a jury when'there is no evidence to make them applicable; the tendency is to mislead. The charge should be applicable to the facts so that the verdict will be responsive to the facts and the law. The facts in Railroad Co. v. Crawford, supra, were entirely different. In that ease the train was hidden in a cut for a distance of two hundred feet until it got within a few feet of the crossing. Had the deceased looked he could not have seen the train upon entering the danger line. There were children in the carriage demanding his attention and other circumstances which might justify the jury in finding that there was a reasonable excuse for his not looking and listening. In this case there was no excuse shown at all and therefore the question of excuse had no application.

The court was asked in the seventh instruction requested by defendant’s counsel to say to the jury, “It was the duty of Edward C. Corlett in approaching the tracks there to use his senses of seeing and hearing, and if he failed to do so, and such failure caused or contributed proximately to his injury, plaintiff can not recover. ’ ‘ This request was refused. It should have been given, or the jury charged to the same effect.

The next question made is that the court erred in its charge respecting the duty of the engineer in ascertaining the perilous position of the deceased and preventing the injury. In the charge the court practically told the jury that if the engineer by the exercise of ordinary care could have seen the deceased and known of his perilous position, and thereafter by the exercise of ordinary care could have stopped the train, or so far checked the speed thereof as to have prevented the injury, and such failure was the proximate cause of the injury, then they should find for the plaintiff. In other words; if the engineer by the exercise of ordinary care could have or should have known of the perilous position of plaintiff’s intestate, and thereafter by the exercise of ordinary care could have prevented the injury, then the company would be liable notwithstanding his own negligence.

Two objections are made to this portion of the charge: First, that there is no evidence whatever upon which to base it; and, second, that as an abstract proposition it is wrong. We are of opinion that both objections are well taken.

Plaintiff below called the engineer as a witness in his own behalf, and he testified that the first he saw of the decedent he was about fifteen feet from the track driving toward the same, giving no attention whatever to the approaching train; that his train was running at a speed of about fifty miles an hour; that he immediately sounded the danger signal, but before he could apply the air to the brakes, he struck the horse and buggy of the decedent. There was no contradiction of this evidence and therefore there was nothing to justify this portion of the charge of the court.

It is well settled that for the court to instruct the jury that they shall pass upon a fact that is material in the case as this was when there is no evidence at all to support it is misleading and such error as will require a reversal of the judgment. Independent of this fact can this portion of the charge be held to be good upon any theory? It is true that this portion of the charge is supported by the holding in Lake Shore & M. S. Ry. Co. v. Schade, 15 C. C., 424, nevertheless we must hold it to be erroneous. The proposition simply amounts to this, that if a traveler on the highway negligently drives upon the track, and the servants of the railway company by the exercise of ordinary care could or should have known of his perilous position in time to save him by the exercise of ordinary care, then the company is liable. We can not subscribe to this doctrine.

It is well settled that if the employe did know of the perilous position of the traveler, then he must exercise' ordinary care in checking or stopping the train. Both the dictates of humanity and the law would require that. Indeed, he should do more; he should make every possible effort to check or stop the train, and if he did not do so it would be willful negligence. But to say, if the engineer did not know but might have known, in other words, if the engineer did not look and plaintiff’s intestate did not look, both guilty of negligence, then plaintiff could recover, would be a paradox in law. It can not be claimed that the negligence of one is any more the proximate cause than the other; the negligence of each is in not looking, when if he had done so he might have ascertained the danger. If the train had been derailed and injury followed, would the company have had a right of action against the estate of the deceased as the estate had a right of action against the company? It is said that the case of Cincinnati, H. & D. Rd. Co. v. Kassen, 49 Ohio St., 230, sustains the contention of plaintiff in error. “We do not think so. The facts of that case show that the company through its servants had actual knowledge that Kassen was upon the track, as he had fallen from one of the trains of the company about two hours before his death, while the train was in rapid motion, and was killed by being run over by another train, the crew of the first train doing nothing whatever to ascertain the result of his fall or to inform the crew of the other train of the accident.

In the third paragraph of the syllabus of that case, the court says:

, ‘ ‘ The rule that the negligence of the injured party which proximately contributes to the injury, precludes him from recovering, has no application where the more proximate cause of the injury is the omission of the other party after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him. ’ ’

It is said, however, that the case of Railway Co. v. Schade, supra, was affirmed by the Supreme Court. So it was, but without report, 57 Ohio St., 650. Upon what grounds we are not. informed. It may have been for some reason distinct from the one under consideration. If we were sure that the fourth proposition of the syllabus of that case was approved by the Supreme Court we would be bound by it and would follow it, but we can not bring ourselves to the conclusion that such is the fact in the light of another case subsequently decided by the Supreme Court with report. In Lake Shore & M. S. Ry. Co. v. Ehlert, 19 C. C., 177, this same question again came before the circuit court of the eighth circuit and the same holding was made, the first, second, third and fourth paragraphs of the syllabus being as follows:

“1. It is negligent for a person having approached a railway crossing where the gates have been lowered, to stand, while waiting for a train to pass on one track, in such close proximity to another track on which trains are known to be operated, as to be within reach of a passing train, or to attempt to walk across the tracks after the gates are lowered.
‘ ‘ 2. Although a person may have been guilty of negligence in placing himself in a dangerous position, in which he was liable to be injured by passing trains, yet if the employes of the railway company in charge of an approaching train knew of his' danger, or might have known by the exercise of ordinary care, in time to protect or save the life of such person, the negligence of the railway is the proximate cause of the injury and a recovery may be had.
“3. In an action for wrongful death, where the evidence clearly shows that deceased, having approached a railway crossing after the gates were lowered, took a position so near another track as to be within reach of a passing train, and that he remained in that position until he was killed, and the evidence also shows that the employes of the railway company in charge of the train saw him, or could by the exercise of ordinary care have seen him for a distance of 150 feet from where he was killed, the rule stated in the preceding paragraph may be applied; and the question in such case, whether the railway company was negligent in failing to sound the whistle in time to warn deceased of his danger and save his life, was properly submitted to the jury, although deceased was guilty of negligence in getting near or on the track.
“4. The rule that a recovery may be had where defendant’s negligence was the proximate cause of the injury, notwithstanding contributory negligence upon the part of plaintiff’s decedent, should be given with great caution; in many cases, where the time for action is short, and the principle is so vague and uncertain, it would be misleading, but under the facts stated in the preceding paragraph it was properly given.”

In this last case the court justifies its holding on the authority of Lake Shore & Michigan Southern Railway Co. v. Schade, supra. This last case also went to the Supreme Court (Lake Shore & Michigan Southern Railway Co. v. Ehlert, 63 Ohio St., 320), and the circuit court was reversed, so that we are at least in doubt as to- what is the holding of the Supreme Court upon the question, and being in doubt, we can not subscribe to the rule laid down in Railway Co. v. Schade, Administrator, and Lake Shore & Michigan Southern Railway Co. v. Ehlert, supra.

The last question made is, that the verdict was manifestly against the evidence. As we have before stated, the unquestioned facts are that plaintiff’s intestate could have seen the approaching train while he was forty feet from the tracks of the railway company and while the train was at a distance of nearly eight hundred feet; that he could have seen the train all the time while he traveled that forty feet, at the rate of speed the train. was going and he was traveling. The train, therefore, was in full view for a considerable space of time, an abundance of time for him to have stopped his horse. There was nothing to divert his’ attention in either direction. All the evidence we have shows that he did not look at all, and that with the curtains down he drove deliberately upon the tracks of the company.

Theodore Hall, for plaintiff in error.

A. G. Reynolds, Bosworth & Hannan and C. W. Osborne, for defendant in error.

How can it be said under these circumstances that he exercised due care and that the verdict of the jury is justified by the evidence ? The judgment of the court below must be reversed upon that ground also. For these reasons the judgment of the common pleas court is reversed and the cause remanded for a new trial.


text:
    POWER IN EXECUTORS TO SELL.
    [Circuit Court of Hamilton County.]
    Elizabeth Schaupp et al v. Thomas Jones et al.
    Decided, June 20, 1902.

      Win — Title to Real Estate, Proceeds from, the Sale of Which is Devised — Sale May Be Avoided, How — Implied Power in the Executors to Sell.

      1. Where a testator provides that land shall he sold and the proceeds thereof divided equally among four persons, no one of the devisees acquires title to the property under the will, but the devisees might, by all uniting, avoid a sale by the executor, and take the premises instead of the proceeds therefrom.
    2. The power to sell land and distribute the proceeds to devisees in accordance with the will is a power that may be inferred from the expression in the will, “firmly believing they (the executors) will carry out the directions of my will,” in the absence of express power thereunto.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   The plaintiffs in error claim title to an undivided one-fourth, interest in certain real estate under the following provisions of the last will and testament of Benedict M. Mueller:

“My house in Cincinnati, 608 Fulton avenue (which I inherited from my dear late father, Nicholas Mueller, to be sold and the proceeds likewise to be divided into four parts, to-wit: First part to St. Rosa’s Catholic Church in memory of deceased parents and myself. Second part to my brother, Andrew Mueller, or in case of his death, to surviving family. Third part to Most Rev. Archbishop Elder, or his successor, in favor of orphans of the diocese. Fourth part to my cousin, Mrs. Elizabeth Sehaupp (nee Gebhart) or (in case of her death) to her children. Benedict M. Mueller.

Arnold Speiser and David P. Schorr, for plaintiff in error.

Charles T. Dumont, contra.

“P. S. I, as executor of this will,, appoint Rev. B. H. Engbers, Ph. D., of Cincinnati, .and Edward Powell, of West Jefferson, Ohio, without bond, firmly believing that they will fully carry out the directions of this will.”

In the first place, Elizabeth Sehaupp acquired no title to the real estate under the will, as the gift was a bequest of money, and although all of the legatees might, by uniting in the request, have avoided a sale by the executor and taken the premises instead, still no one of them could alone do so.

The executor having sold the house and lot, it is claimed that he did so without authority. There is no express authority conferred upon the executor to sell or divide the proceeds of sale of either the personal or real property, and after signing the will it evidently occurred to the testator that he had appointed no one to carry out his will. Hence in making the appointment he uses the language, “firmly believing that they will fully carry out the directions of this will.” While these 'words do not amount to a command or direction to the executors, they express the wish and desire of the testator that the person so appointed shall execute the will as he directs. In other words, they express such intention on the part of the testator.

We think, therefore, that the judgment should be affirmed.


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    HOMESTEAD EXEMPTION.
    [Circuit Court of Ashtabula County.]
    F. R. Simmons et al v. Admr. of Sarah J. Moore et al.
    Decided, October Term, 1897.
    • Homestead — Exemption in Lieu of, May be Allowed on Distribution— Where a Debtor Has Placed Himself in Position to Demand It— Subsequent to the Order for Sale — Such Action not a Fraud on Creditors — Exemption Superior to Judgment Liens.

    1. A court has authority to grant or refuse an allowance in lieu of homestead, upon an application made subsequent to the fixing of priorities, and issuing of the order for sale, the determination upon the application to depend upon the circumstances existing, at the time of distribution.
    2. It is not a fraud upon his creditors for a debtor by marrying to put himself in position to demand an allowance in lieu of homestead.
    3. Marriage having occurred, and demand for homestead exemption having been made and allowed subsequent to the decree fixing the amounts and priority of liens, the allowance for homestead becomes superior to the judgment liens, and the lienholders take that much less.
    Frazier, J.; Laubie, J., and Burrows, J., concur.
    Heard on error.
   Proceedings in error are prosecuted by F. R. Simmons and others, claiming to have liens by reason of levies made after the death of Sarah J. Moore on executions issued on judgments against A. ^U. Moore.

A. U. Moore, as administrator of his wife’s estate, commenced proceedings in the probate court for the sale of the real estate of his deceased wife. It is an uncontroverted fact that Mrs. Moore was insolvent at her decease.

The administrator made not only himself, as heir, but the mortgagees of his wife parties, and averred that certain other parties claimed an interest in these premises, as creditors of the surviving husband, who was also administrator.

The case was disposed of in the probate court, which, under our statute, had full jurisdiction in the matter and authority to determine the validity and priority of the liens. The case was then, appealed to the court of common pleas and was submitted in that court upon an agreed statement of facts. The case was disposed of by the learned judge of the court of common pleas, and his opinion is published in Moore v. Moore, 6 Dec., 154. We only propose to remark upon such matters as are urged in this hearing as do not appear to be directly alluded to in that opinion.

By the agreed statement of facts, it is shown that A. U. Moore received an order of sale from the probate court in this proceeding for the sale of all of the real estate of which Sarah J„ Moore died seized on November 18, 1895, and that on said date he received an offer for tract 1 of said property from Richards Brothers, to purchase said tract for $3,500, the appraised value thereof.

That on March 14, 1896, the defendant Moore was remarried, and since that date has been a married man, the head and support of a family; that he is a resident of Ohio, and neither he nor his wife own a homestead.

That on March 19, 1896, he accepted the offer of said Richards Brothers for said tract 1, and reported to the probate court the sale, which was confirmed and deed made and delivered, and said $3,500 paid.

That on August 26, 1895, the creditors of A. U. Moore caused executions to issue and they were levied and return made by the sheriff:

“No goods or chattels of the within named A. U. Moore being found to levy, I did, on the 26th day of August, A. D. 1895, at the hour of two o’clock p. m., levy the annexed writ upon the following described real estate (describing the same real estate described in the petition filed by the administrator to sell lands’ in the probate court in this case). No further proceedings by me under and by virtue of the annexed writ and the same is returned: No money made, not satisfied.”

It is now inquired, what was brought into the court of common pleas by the appeal, and it is urged that the order and finding in the probate court, upon which the premises were sold, was not appealed.

One thing I apprehend is certain: There can be no question but the order of distribution in this case was appealed from. The appeal was perfected within the time prescribed by statute from the making of that order.

It is contended that the finding of the amount due each creditor, and the priorities, is in effect a judgment, and the finding that the creditors of A. U. Moore had obtained liens upon his dower interest by their levies not being opened up by the appeal, the proceeds of sale must be distributed as there found. We think the same rule prevails in this action, as would prevail in an ordinary proceeding to foreclose a mortgage, where other mortgagees and judgment creditors are made parties to marsha liens, and a finding of amount due each, and the priorities^ with an order to sell to satisfy the sums found due. If a party is found to be entitled to an exemption in lieu of a homestead under Section 5441, Revised Statutes, it is not necessary to change the findings and order of sale. The mere fact that a lien exists does not bar the right to an allowance of homestead or exemption in lieu of it. It is allowed because in law the debtor’s right to it is a higher and better right, a right more favored and superior to a judgment lien.

In McConville v. Lee, 31 Ohio St., 447, 450, it is said:

“Nor can it make any difference that previous to the sale, an order had been made that the proceeds of the sale should be applied first in payment of costs, then in satisfaction of the mortgage debt, and then in satisfaction of the judgment. The decree in that respect was within control of the court until there was actual distribution.”

The only effect, so far as creditors are concerned, is that there is that amount less to distribute under the order, and they are affected just as they would have been had the premises been sold for that sum less than it brought. A lien may exist, but it is only valuable to the lien-holder if the property is not consumed in payment of prior liens or superior claims.

The demand for exemption was made by motion filed in the probate court on the day before sale. The court has authority to make or refuse an allowance under Section 5441, Revised Statutes, out of the proceeds of sale, as warranted by the facts or changed circumstances of the parties, as they exist at the time the surplus is disposed of.

The order appealed from and in question here is only the right of A. U. Moore to have an allowance in lieu of a homestead.

The authorities appear numerous upon the question to which I have referred, especially Niehaus v. Faul, 43 Ohio St., 63, where it is held:

“The right to demand an allowance in lieu of a homestead under Section 5441, Revised Statutes, out of the proceeds of the second sale, is to be determined by the state of facts at the time the surplus arising from such sale was finally disposed of by the court.”

It is claimed also that it was a fraud upon the creditors for him to get married, and put himself in a state to make a demand in lieu of a homestead. We have upon that subject the case of Mortley v. Flanagan, 38 Ohio St., 401, the syllabus of which is:

““Where the members of a firm acting in good faith, dissolve the partnership, and one member sells his interest in the partnership property to the other, the latter will not be deprived of the right to hold such property exempt from the payment of a debt thereafter asserted against him, on the ground that such debt was a partnership debt due at the time of the dissolution, nor will the fact that the partners knew the firm to be insolvent at the time of such dissolution make any difference. Gaylord v. Imhoff, 26 Ohio St., 317, distinguished.”

Judge Okey, in the opinion, comments as follows:

“The denial in the reply seems to be as broad as the averments in the answer; but if we construe the reply as admitting that one of the reasons which induced the dissolution and the sale to A. C. Flanagan was to enable him, to claim an exemption from execution, the result would be the same. A sale fairly and honestly made by one member of a firm of his interest in the partnership property and effects to the other partner, will not be rendered invalid by the fact that it was expected such partner would thereafter avail himself of the provisions of the statute to hold such property exempt from execution. Such a purpose where the purchase is Iona fide is not the subject of averment or proof. ’ ’

If it is a fraud for a man to put himself in a position to demand a homestead, the whole right to have a homestead would be a fraud.

Hoyt & Munsell, for judgment creditors.

G. W. Belknap and C. A. White, for U. A. Moore.

Having said this much we are content to affirm this ease on the other questions made in the record, upon the reasoning of Judge Howland in Moore v. Moore, supra. Judgment will be affirmed with costs; no penalty.


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    AGREEMENT AS TO ATTORNEY’S FEES.
    [Circuit Court of Hamilton County.]
    Harvey Meyers v. Mollie F. Pearce.
    Decided, August 11, 1902.

      Attorney’s Fees — Strict Proof Required to Establish a Change of Contract as to the Amount to be Paid.

      Where an attorney claims a change of contract was made as to the amount he was to receive for his services in a given matter, the burden is upon him and strict proof will he required, notwithstanding by a quantum meruit he would receive a much larger amount.
    Jelke, J.; Swing, J., and Giffen, J., concur.
   It appears from the record that Harvey Meyers rendered services to Mrs. Pearce, of great ability, courage and value, and that the same were successful, and if it were a question of qumitum meruit the amount of the alleged contract would be inadequate and the amount retained by him reasonable. But that is a matter with which we are not concerned if there was a subsisting contract between Mr. Meyers and Mrs. Pearce.

- Mrs. Pearce says Mr. Meyers undertook to do this work for $500.

Mr. Meyers says that the $500 contract was subsequently by agreement abrogated. The burden of showing this change is on Mr. Meyers, and it is to the credit and dignity of the legal profession that the measure of proof required by law is strict. It may even be that Mr. Meyers is right in this contention, but it is better that he should fail for want of sufficient proof than that there should be any relaxation in this regard. However this may be, this issue was fairly submitted to the jury under a proper charge and we can not say that the verdict is so manifestly against the weight of the evidence as to call for a reversal.

Harvey Meyers, pro se.

Hallam & Terrill, contra.

Judgment affirmed.