text:
    COURT STENOGRAPHERS.
    [Summit (8th) Circuit Court,
    October term, 1902.]
    Caldwell, Marvin and nale, JJ.
    Gideon Carr v. Summit County.
    1. Section 475 Rev. Stat. not Applicable to Summit County.
    Summit county is not within the provisions of Sec. 475 Rev. Stat. et seq. providing for court stenographers in certain counties, but the appointment and duties of stenographers in said county are regulated by Sec. 1 of 90 O. L. 68 and Sec. 2 of 87 O. U. 93, and such county is not required to pay the stenographer’s fees for a bill of exceptions ordered by the defendant in a criminal case. Whether said Sec. 475 Rev. Stat. et seq.-, Sec. 1 of 90 O. h. 68 and Sec. 2 of 87 O. U. 93 are not in contravention of Sec. 26, Art. 2, of the constitution, quaere.

      2. Accused not Deprived oe Constitutional Rights by Failure oe Statute to Provide Payment oe Stenographer’s Fees.
    A person tried for crime is not deprived of any constitutional ’right by the failure of the statute to provide that stenographer’s fees for bills of exceptions, ordered by defendants in criminal cases in the county in which he is tried, shall be paid for out of ”the county treasury.
    Error to the court of common pleas.
    Nathan Morse, for plaintiff in error.
    H. M, Hagelbarger, prosecuting attorney, for defendant in error.
   MARVIN, J.

This case arises upon the following state of facts: Gideon Carr was, upon trial in the court of common pleas, convicted of a crime and sentenced to imprisonment in the penitentiary. For the purpose of prosecuting error to the circuit court he had prepared by the official stenographer of the court a bill of exceptions, the expense of which was $90, and this sum Carr paid to the stenographer. He thereafter presented to the commissioners of Summit county a bill for said amount, which was rejected by the commissioners, and Carr took an appeal to the court of common pleas. Hearing was had in said last named court upon the following.agreed statement of facts :

“ First — That the bill presented to the board of county commissioners herein was for a transcript of the testimony for a bill of exceptions in the criminal case of the State of Ohio v. Gideon Carr, who was tried in this county for murder in the first degree, and convicted o^ murder in the second degree at the April term, 1900.
“ Second — Said cause was taken to the circuit court on error, said bill of exceptions being filed in the circuit court, and upon hearing, the judgment of said common pleas court was reversed by said circuit court.
“Third — During said April term, 1900, of said court of common pleas one W. H. Collins was the official stenographer of said Summit county, having been appointed by the court of common pleas of Summit county, Ohio, at the September term, 1899, at a salary of $1,500 per annum.
“ Fourth — Said Collins as such official stenographer took the testimony given upon said trial in the court of common pleas, and at the request of one E. F. Voris, attorney for said defendant, transcribed said notes into long hand, and thereupon demanded payment of said Voris for such transcript, whereupon said Voris, for and on behalf of said defendant, paid said Collins therefor $90, being the amount due said Collins for said transcript at eight cents per 100 words.
“Fifth — That the population of Summit county by the federal census of 1880 was 43,788.
“ Sixth. That said Collins, after his appointment as such official stenographer, drew his salary monthly from the county treasury of said Summit county and the clerk of courts taxes $4.00 per day for the reporting in shorthand in the cases so reported by said Collins, which costs when paid into the clerk’s office was by him turned into the county treasury.”

And the court thereupon found and entered judgment against the plaintiff. To this finding and judgment plaintiff excepted, and by proper proceedings, brings the case into this court.

The judgment of the court of common pleas in this case is affirmed.

The question in the case is whether, where a prisoner, upon conviction of a crime in the court of common pleas, has a bill of exceptions prepared by the official stenographer of the court in this county; the county is responsible for the payment of the stenographer’s fees.

In support of the contention on the part of the plaintiff in error, the case of Clinton Co. v. Martin, 65 Ohio St. 287 [62 N. E. Rep. 129], is cited, and it is clear that if the official stenographer of the court in Summit county were appointed under the same section as that under which the appointment is made in Clinton county, this contention must be decided in favor of the plaintiff in error. The appointment in Clinton county is made under Sec. 475 Rev. Stat., and this and the following sections, up to and including Sec. 481 Rev. Stat., make provision for the appointment of official stenographers, and require such appointment to be made by the judges of the courts of common pleas and probate courts.

Section 480 Rev. Stat. provides that:

“The fees of the official stenographers for making such transcripts, shall be eight cents per folio of one hundred words, and shall be paid forthwith by the party or parties for whose benefit the same is ordered, and when paid shall be taxed as other costs in the case; but all transcripts made in criminal cases and transcripts ordered by the court, where not asked for by the parties, shall be paid out of the county treasury, in the manner herein provided for the payment of fees for taking shorthand notes.”

In Clinton Co. v. Martin, supra, the court held that under this last quoted section the defendant in a criminal case having paid the fees of the stenographer for his transcript, was entitled to be reimbursed out of the county treasury.

The appointment in Summit county is made under Sec. 1 of an act passed March 8, 1893, and found in 90 O. h. 68. This section provides for the appointment of an official stenographer by the court of common pleas, and in that regard differs from the section under which the appointment was made in Clinton county. The section is an amendment to a statute found in 88 O. L,. 190, and this is an amendment to Sec. 1 of an act found in 87 O. L. 92. The several sections found in 87 O. L. 92, together with the amended section under which the appointment is made in Summit county, make complete provision for the duties and compensation of the official stenographer.

Section 2 of the act which still remains in force, and is found in 87 O. L. 93, provides, among other things, that:

“It shall also be the duty of such stenographer to make, or cause to be made, at the request of either party, his attorney, or the court, an accurate transcript into longhand of the notes so taken in any case, to be paid for forthwith by the party or parties ordering the same, but no transcript of the notes into longhand shall be paid for out of the county treasury in any case, unless such transcript shall be ordered made by the judge trying the case, for his own use, and in criminal cases by the prosecuting attorney. ”

It is conceded'that if this section is to govern, the judgment of the court of common pleas was right. But it is urged that the entire law as to appointment of stenographers in Summit and the other counties to which these last mentioned sections, in terms, apply, is unconstitutional because of its making classification of counties upon an arbitrary basis of population; that it is-special legislation on a general subject matter, such as is inhibited by Sec. 26, Art 2 of the constitution of Ohio, which reads: “All laws of a general nature shall have a .uniform operation throughout the state.”

Whatever may be said as to the construction to be given to this constitutional provision under the recent decisions of the Supreme Court of the state, it seems a sufficient answer in this case to say that the statute under which the plaintiff in error makes his claim is equally obnoxious to this provision of the constitution. And, further, that unless the statute under which the official stenographer for Summit county is appointed is constitutional, he has never been lawfully appointed, because if the appointment is to be made and the stenographer governed by the provisions of Sec. 475 Rev. Stat. et seq., the appointment should have been made by the judge of the court of common pleas and the judge of the probate court acting together, so that either Summit county is without an official stenographer, or the official stenographer is in the performance of his duties under the statutes found in 90 O. L. 68 and 87 O. L. 93. In either case the plaintiff here would not be entitled to recover.

There is force in the argument made by counsel for plaintiff in error that this construction gives to one tried for a crime in certain counties of the state rights which are not given to him in Summit and some other counties, and there seems no good reason, in the nature of things, why this distinction should be made ; but the legislature has made it and has not thereby deprived those tried for crime of any constitutional right.

It can hardly with reason be said that the statute under which the stenographer for Summit county is acting is an injustice to one tried for crime, but only that a favor has been granted to those tried for crime in the counties to which the other statutes apply, which favor has not been extended to those tried in Summit county.

Whatever reasons may have influenced the legislature in making this distinction, the court of common pleas followed the law as it is, and,' hence, no error was committed and the judgment is affirmed.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    INSURANCE — LLOYDS.
    [Cuyahoga (8th) Circuit Court,
    March 20, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Perrysburg & Toledo Transportation Co. v. J. C. Gilchrist.
    1. Provisions as to Suit in Lloyds’ Policy.
    The provision of a Lloyds policy issued by an underwriters’ association, composed of individuals binding themselves for certain sums, that “ no action shall be brought to enforce the provisions of this policy except against the general manager as attorney in fact, and representing all the underwriters and each of the underwriters hereby agrees to abide the result of any suit so brought, as fixing his individual responsibility hereunder” is valid, especially where the attorney in fact is also an underwriter and. so named in the policy.
    2. When Suit May be Brought Against Members.
    Where such association has ceased to do business, has no assets of any kind, and the attorney in fact issuing the policy has resigned and his place has not been filled so that service of summons can be made on such officer, suit may be brought against the individual members of the association, notwithstanding a provision in the policy requiring suit to be brought against such officer.
    8. Erroneous Charge as to Such Suit.
    A charge, in an action against the individual members of such association, that “if, at the time of the fire” the party named “was general manager and attorney in fact of the underwriters’ association, no action on his part in resigning, or attempting to resign, and no action on the part of the defendants accepting said resignation, would abrogate the clause of the policy providing that no action should be brought except against the general manager as attorney in fact ” is erroneous.
    4. Erroneous Charge as to Service in New York.
    A charge that if the general manager of such association “had a residence or dwelling house ” in such county, suit should be' brought against him arid service made there, and that a suit against individual members of the association would fail, is unauthorized by the New York code, authorizing service by leaving summons, where defendant “ has a place of residence in the county.” Such a charge would be misleading, as the jury might infer that mere ownership of a dwelling would authorize service.

      Heard on Error.
    R. M. Lee, for plaintiff in error.
    Goulder, Holding & Masten, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. The plaintiff is a corporation and was the owner of the steam propeller “ Idler,” which was insured ag-ainst loss or damage by fire under, policy No. 30,003 issued at the office of the Niagara Fire & Marine Underwriters of Buffalo New York; and this was an association, the policy being what is known as a Lloyds policy. It was issued ou behalf of the defendant and fourteen other natural persons. It was written by Henry S. McFall; and by the terms of the policy, each of said fifteen underwriters insured said propeller against loss or damage by fire for the term of one year from August 20,1895, at noon, to August 20,1896, at noon. About January 12, 1896, said steam propeller was destroyed by fire. Plaintiff claims to have given proper notice and proofs of loss, but it is claimed that demand for payment was refused.

One of the provisions of the policy reads :

“No action shall be brought to enforce the provisions of this policy except against the general manager as attorney in fact, and representing all of the underwriters, and each of the underwriters hereby agrees to abide the result of any suit so brought, as fixing his individual responsibility hereunder.”

At the time the policy was issued and the propeller “ Idler ” destroyed, Henry S. McFall was attorney in fact of each and all of the underwriters.

On the part of the plaintiff in error, it is claimed that the clause quoted is void and of no binding effect as determining upon whom suit should be brought in case of loss, and as each individual underwriter is liable for one-fifteenth of the whole amount insured against, suit may be brought and maintained against each. That question was passed upon by this court in the case between these same parties upon the same policy, Gilchrist v. Transportation Co., 11 Circ. Dec. 350 (21 R. 19), and we there held that this clause of the policy was not void but binding, and we adhere to that.

It is further claimed on the part of the plaintiff in error that said Henry S. McFall resigned from his position as general manager and attorney in fact of the Niagara Fire & Marine Underwriters and the several underwriters in said association, and that his resignation was accepted in March, 1896. The fire occurred in January, and suit was brought in June, 1897. Under the terms of the policy suit should be commenced in one year alter the proofs of loss had been made.

It is said that, thereafter, that is, after the resignation of McFall, the association, made up of these several underwriters, had no attorney in fact or general manager, had no assets, was out of business; that this clause is not necessarily to be complied with, but the attorney in fact and general manager, having resigned and withdrawn, there being no such officer, the party whose property is burned might bring his action against each of the several underwriters for a proportionate share of the loss.

This was also passed upon by this court in the former hearing. It was said in argument that it was not necessary to pass upon it; that what was said was not necessary to the decision of the case, but we adhere to what was said in the case before, when it was here upon this proposition. The language used is:

“ Where the attorney is also an underwriter, this clause of the policy is valid and not contrary to public policy; but, notwithstanding this, if it be shown that the company had ceased its business, that it had no assets of any kind, that the attorney in fact had resigned and his place had not been filled so that service could not be had upon such attorney in fact, then we think the action could be maintained against .any one of the underwriters.”

We still adhere to that. It would be an extraordinary thing to say that suit should be brought against the attorney in fact, there being no •attorney in fact. Each of the underwriters undertook to be responsible for one-fifteenth part of the policy. The attorney in fact can not be found, or has ceased to be such. It would be difficult to determine what should be done if suit cannot be brought against each of the several underwriters.

It is further claimed on the part of the plaintiff in error, that McFall left Buffalo in 1896; that his whereabouts were unknown ; that he not only left there, but ceased to reside there, had no place of residence there, and that service could not be had upon him in the •county of Erie in the state of New York; and that, therefore, the suit may be brought against the individual underwriters.

There was introduced in evidence in the case Sec. 425, also 426 of the code of procedure of the state of New York, as bearing upon the case, as lo whether summons could be served to bind McFall and those whom he represented. Without reading the provision, that where one has left the county of his residence and can not be found, that a copy of the summons may be.left at the residence of the defendant with a person of proper age, if, upon proper application, an authorization can be •obtained. And evidence was introduced in this case, upon the question of whether McFall still had a place of residence in Buffalo. The court charged the jury upon this as follows:

“ I furthermore say to you, gentlemen of the jury, as a matter of law, if you find from the evidence that Henry S. McFall, at the time of the delivery of the policy to the plaintiff and at the time the loss occurred, was the general manager and attorney in fact of the defendant, and for a period of twelve months next after the fire had a residence or dwelling house in the city of Buffalo, New York, then the plaintiff was under obligation to commence its action against the said McFall as attorney in fact of the defendant and cannot recover in this action, and your verdict will be for the defendant.”

As applicable to the point now being discussed, the language complained of is : ‘‘If you find from the evidence that Henry S. McFall * ' * * for a period of twelve months next after the fire had a residence or dwelling house in the city of Buffalo,” — the language of the statute being : “ If he has a place of residence in the county, service may be had by leaving summons at such place of residence.”

It is said that this language ought not to have been used, because it authorizes service not authorized by the statute; and, on the other hand, it is said that the dwelling house and place of residence must be one and the same thing, although the language is: “ If you find from the evidence that Henry S. McFall had a residence or dwelling house in the city of Buffalo.”

In the record, on page 495, in' the charge, the court said: “ And if you further find that the said Henry S. McFall did not have either a residence or dwelling house in Buffalo for a period of twelve months from the date of said fire, January 12,1896, then plaintiff will be entitled to recover,” etc.

We think there was error in the charge in this regard. This last clause was misleading. If we are right in holding that the language of the statute which provides for service of summons at one’s place of residence, does not come within the language, “ had a residence or dwelling house,” we think the jury might very well come to the conclusion that inasmuch as this man owned a dwelling house or residence in Buffalo, though he did not live there, that if he owned the dwelling house in that city1', though rented out, summons could be served there.

The use of the words, “or dwelling house,” would imply that.

Again, in the charge: “ If you find he had either a residence or dwelling house,” this was calculated to mislead the jury.

But it is said it does not make any difference whether you could serve him or not, because of the provision of the policy. But we hold that that provision of the policy would not prevent one from bringing suit against the individual underwriters if service could not be made upon the attorney in fact. t

The court erred, as we hold, in its charge to the jury in what has already been read, and also in giving the following:

“ And I furthermore say to you, that in case you find from the evidence that Henry S. McFall, at the time of the delivery of the policy to the plaintiff, and at the time of the fire was general manager and attorney in fact of the underwriters whose names are appended to the policy, no action on the part of McFall in resigning, or attempting to resign, and no action on the part of the defendant accepting said resignation, would abrogate that clause of the policy wherein it is provided that no action shall be brought to enforce the provisions of the policy, except against the general manager as attorney in fact, but the plaintiff had the right, and was under obligation to bring its action against McFall according to the provisions of the contract, and the defendant be estopped to deny the right of the plaintiff to so bring its action.”

This is in direct conflict with what was said by this court before, and the case is reversed for these errors in the charge of the court.

There were some requests made involving practically the same propositions, which were refused, and, to the extent that they did involve the exact propositions, these or, their equivalent should have been given. Requests numbered four and eight should have been given in the words or substance as the court was requested to give them, and it follows, therefore, that for these errors the judgment of the court below is reversed aud the cause remanded to the court of common pleas for a new trial.


author: PARKER, J.

text:
    STREET IMPROVEMENTS — SPECIAL BENEFITS.
    [Lucas (6th) Circuit Court,
    1902.]
    Haynes, Parker and Hull, JJ.
    Joseph L. Yost (Treas.) v. Toledo & Ohio Central Ry. Co.
    1. An Assessment in Excess of Benefits — Estoppel.
    The fact that a railroad company pays an assessment levied upon its property on account of an adjoining street improvement, for a number of years without objection, does not estop its setting up that the amount assessed was in excess of the special benefits accruing to its property, where it appears that it had received no notice of this proposed improvement and assessment, and such steps had 'been taken without its knowledge, and it had not participated in the carrying forward of the improvement. The burden of proof, under such circumstances, rests upon the railroad company to establish that the assessment exceeded the special benefit accruing to its property.

      2. Same — Separate Parcels — When Beneeits as to One Parcee Exceed Assessment.
    Where the railroad company, having paid part of such assessment levied on two separate tracts situated on opposite sides of a street, shows that the amount already paid is equal to the special benefits accruing to one parcel of its property abutting on the improvement, but fails to establish that the assessment upon another abutting parcel is in excess of the special benefits accruing thereto, its defense as to the first parcel will be sustained, but a decree for the full amount of the assessment due upon the second parcel will be given against it.
    Heard on Appeae.
   PARKER, J.

This case comes into this court by way of appeal. It is an action by the treasurer to recover certain taxes and assessments. The question presented to us for consideration and decision relates to certain assessments levied upon the property of the railroad company on account of the cost and expense of paving Bridge, street, running along their premises in East Toledo, extending from Front street in East Toledo to the Cherry street bridge, the part of it running between a certain tract of land belonging to the railroad company, constituting the western approach to the bridge. This street improvement was made in 1891, and the assessment was levied by ordinance passed upon January 4, 1892. The assessment upon the property abutting upon the improvement was made by the foot front rule, and part of the cost of the improvement was assessed upon the street railroad which traverses this street; the remainder was assessed one-half upon the general tax duplicate of the city and one-half on the property abutting on either side of the street according to the foot frontage, and this made the amount of the assessment upon the abutting property about $5.00 per foot front.

No objection to this assessment appears to have been made by the defendant railroad company at the time it was made; and the assessment which was spread over a period of years (the years 1892 to 1901 inclusive) has been paid from time to time by the railroad company, without objection, until it came to the assessment of 1899, when it declined to pay further, upon the ground that it had airead}'' paid as much as the special benefits accruing to its property, that is to say, an amount equal to the special benefits.

At the last term of this court we decided, upon certain facts then presented, that the railroad company had not received such notice of this proposed improvement and assessment, and such steps had not been taken with its knowledge, or it had not participated in the carrying forward of the improvement in such way as to preclude it from interposing this defense. In other words, that it was not absolutely bound or estopped; but we also held that, under the circumstances, the burden of proof rested upon the railroad company to establish that the assessment exceeded the special benefit accruing to its property, and upon that question the issue was made up, the evidence submitted, and the case presented at this session of the court.

The property of the railroad company consists of two parcels; it appears to have been so described in the proceedings for the improvement and assessment, and is distinctly so described in the petition of the treasurer in this case, in which he attempts to collect the assessment, and we think that the circumstances justify or indeed require that it shall be considered by us in this case as two distinct tracts, one of the tracts lying upon the north side of Bridge street, the other upon the south side. The tract upon the north side has a frontage upon this street of 868.84 feet. The total amount of the assessment upon this tract was $4,264.77; of this amount there has been paid by the company $3,189.31, leaving a balance unpaid of $1,075.45. The frontage of the tract upon the south side is 740.10 feet. The total assessment upon that was $3,641.21; of this there has been paid $2,722.99, leaving a balance unpaid of $918.22.

It will be seen that substantially three-fourths of the assessments have been paid on each side, in the neighborhood of $3.75 per foot. I have not figured this out closely, but it amounts to about that. Now the property upon the south side has been somewhat improved. In a state of nature both tracts were under water; they constituted part of the shallow waters of the Maumee river upon the eastern side of that river, and improvements have from time to time encroached upon the river, and the river has been filled in. Upon the south side the railroad company has filled in its track for some distance. It is conceded that about 500 feet of this 741.10 feet upon the south side is filled in, and the company is, and at the time of the making of this improvement was, utilizing it for its freight depot and yards, its passenger depot and tracks, etc.

These properties have a frontage also upon the river. Extending out beyond these limits indicated by the foot frontage upon the street, they have a right to erect docks. The railroad has not availed itself of its river frontage by building any docks, or by otherwise utilizing the property. It is said by witnesses that ultimately, as the city grows, in all probability the property will be useful and valuable on account of its river frontage and its dock privileges on the north side. However, there has been no filling in of this shallow part of the river, and so fat as present utility is concerned, or any present use that is made of the property, it is practically waste swamp land. The water over it is nor deep enough for navigation, and it is rather too deep for other lines of business.

It is said, however, by witnesses, that the property has been improved generally, that is to say, its value has been increased, and that this increase has been somewhat special in its character by reason of this improvement', notwithstanding the fact that the part upon the north side is not at present utilized. As to the extent of this benefit the witnesses differ widely. It is apparent that it is somewhat speculative, that is, it depends upon the growth of the city and the future use that may be made of the property; at present the street improvement is really of no use to the property. But, as I have said, witnesses say that it has increased its value, its market value, and we are not prepared to say that this is not a special benefit that may be considered and form the basis of a special assessment. But we are of the opinion, taking the testimony of all the witnesses into consideration, that the railroad company has already paid upon the tract upon the north side of the river fully up to the amount of the special benefit accruing thereto from this improvement; that the special benefit was not equal to the whole cost of the improvement or that part of the cost assessed upon this property; and that the amount paid, about $8.75 per foot, is fully as much as the property was specially benefited, so that the defense as to that will be sustained.

I believe there is a prayer for an injunction, and that will be granted.

As to the tract upon the south side, we are of the opinion, from the testimony of the witnesses, that the 500 feet which has been filled in and utilized, as I have stated, has been specially benefited much more than the $5.00 per foot assessed upon the property. In our judgment a fair consideration of the evidence warrants, us in saying it has been benefited $10 pér foot for the 500 feet, and that would amount to $5,000, which is much more than was assessed upon the whole frontage of 740.10 feet. As before stated, we are not asked to subdivide, and we do not ieel authorized to subdivide these tracts, and we consider them as entireties. The sum of $8,641.21 was assessed upon this tract, $2,722.99 has been paid and $918.22 remains to be paid.

We are of the opinion that the railroad company has failed to establish that the total amount of the assessment upon the tract lying upon the south side of Bridge street exceeds the special benefit accruing thereto from the improvement; and, therefore, its defense as to that tract is not sustained. The decree as to that tract will be in favor of the plaintiff.

And in view of the fact that the parties each prevail as to one of the tracts, as to practically half of the controversy, the costs will be divided and judgment for part of the costs shall go against each party. Each party shall pay its own costs.


text:
    TWO-MILE ASSESSMENT PIKE — SUBSCRIPTION.
    [Lucas County (6th) Circuit Court,
    April Term, 1902.]
    Haynes, Parker and Hull, JJ.
    Philip Hassenzahl et al. v. William Bevins.
    1. Subscription to Road Improvement, by Person, Without the Jurisdiction oe County Commissioners Benefited Thereby, is Valid.
    When, under Sec. 4831 Rev. Stat. et seg., relating to two mile assessment pike improvements, viewers report that the improvement of a road extending from Ohio into Michigan is not enough of a necessity to justify the extension of the improvement to the state line at the expense of the landowners in Ohio, but would be if the landowners in Michigan, whose lands would be especially benefited by the improvement, would contribute $1,500 to the expense thereof, upon which suggestion the sum required is subscribed and the commissioners thereupon find public utility requires the improvement, which is made, an agreement, by a person owning land in Michigan specially benefited by the improvement, and whose land is situated contiguous to the improvement, to contribute $100 thereto, is upon a good and valuable consideration. \
    t. Same — Mutuality—Performance of an Agreement by One Party Binds Other Party Benefited Thereby.
    Although a promise is not a good consideration for a promise unless there is absolute mutuality of engagement, yet an agreement by county commissioners to make a public improvement in consideration of the promises of certain persons to contribute to the cost thereof, is not enforceable against the latter, for the reason that it cannot be enforced against the commissioners ; nevertheless, when such an agreement has been fully performed on the part of the commissioners, it becomes binding upon the other parties and may be enforced against them.
    3. Subscription to Public Improvement by Persons Having Peculiar and Local Interest Therein not Against Public Policy.
    An undertaking by written subscription to contribute money in aid of a public improvement is not void as against public policy when made by persons having a peculiar and local interest or whose property will be specially benefited thereby.
    Heard on Error.
   PARKER, J.

This is a proceeding in error from the court of common pleas of this county. In the court below a general demurrer to an ainended petition was sustained, and the plaintiffs not desiring to plead further, judgment was entered dismissing the same. To that judgment they prosecute error here. The plaintiffs below and in this court are the county commissioners of Lucas county.

The suit is upon an alleged undertaking by the defendant, William Bevins, to contribute toward the expenses of constructing a certain macadamized road, or the macadamizing or improving of a certain road under the two mile assessment law (Secs. 4831 Rev. Stat. et seq.). It appears from the averments of the petition that in the improvement of a certain public road called Lewis avenue, extending from the city limits at a certain point to the state line between the states of Ohio and Michigan, a distance of perhaps two miles and a half from West Toledo, northeasterly to the state line between the state of Ohio and Michigan, was petitioned for under this statute; that the viewers, who were required under the statute to report whether in their opinion the improvement was a necessity, reported to the commissioners that it was not enough of a necessity to justify extending it to the Michigan line at the expense of landowners in Ohio or in Lucas county; but that if the owners of lands in Michigan whose lands would be especially benefited by the improvement would contribute $1,500 toward the expense, then the improvement might be deemed of sufficient necessity to justify the expense falling upon the property owners in this county. Now the commissioners are required to say whether or not the road petitioned for is of public utility, or whether public utility requires the improvement, and the commissioners were unwilling to find that public utility required the improvement at the sole expense of property owners in Lucas county. Perhaps they were not authorized to so find, except upon a report by the viewers in favor of the road, finding that it was a necessity.

At all events, in pursuance of this recommendation of the viewers, the commissioners and all persons interested in the improvement got together and it was arranged and agreed between them that if the property owners in Michigan would pay $1,500 toward the improvement, it would be carried forward; otherwise, it would not. It was perhaps contemplated that it would be carried forward to within about half a mile of the Michigan line in the event the Michigan parties did not contribute. Certain persons interested agreed that they would procure contributions from Michigan property owners, whose property was especially benefited, to the amount of $1,500, and that they themselves would be bound for this $1,500, and it appears that thereupon they took agreements or promises to pay from the parties in Michigan, one of whom was Mr. Bevins, who owned a piece of land close to the state line and cornering upon this proposed improvement, to pay certain amounts toward the cost and expense on this improvement, the promise of Mr. Bevins being to pay $100. When these promised contributions amounted to $1,500, the viewers reported that they found that the improvement was a necessity, and the commissioners then found that public utility required the improvement, and they proceeded to follow the directions of the statute and to make the improvement.

Now this suit is against Mr. Bevins upon his promise to pay $100 toward this improvement. His promise was not made directly to the commissioners; but it is conceded on all hands that the arrangement amounted practically to an agreement that Bevins should pay the commissioners of Lucas county $100 toward this improvement. The amended petition so sets it up and it will be so considered.

Counsel for defendant in error urges, and his contention was sustained by the court of common pleas, that this agreement cannot be enforced for several reasons. (1) He says it is without consideration; (2) That it lacks mutuality; that is to say, it was not enforceable against the commissioners, therefore, it cannot be enforced against him, which is only another phase or branch of the question of consideration, and, (B) he urges w¿th great earnestness as his chief ground of defense that the commissioners being unauthorized, either expressly or by necessary implication, to enter into a contract of this kind, and it being against public policy, that, therefore, it cannot be enforced.

We find no express authority in the statute for the commissioners to enter into a contract or arrangement of this character. Neither do we find that it is given by clear implication of law, that is to say, that it is such an act as may be necessary to carry out the powers expressly conferred upon the commissioners or to enable the commissioners to perform the duties expressly enjoined upon them.

But if it be conceded that the commissioners had none of these powers, still we think it does not follow that the board cannot enforce this contract. We think that there are other principles that have application and influence in a case where a contract has been fully performed upon the one side and the party resisting performance upon his part has received and is enjoying the fruits of the performance of the other party.

Before going to that I will say briefly that it is not apparent to us that this contract is without consideration. It seems to us very clear that it is supported by a good and valuable consideration; that is to say, relying upon the averments of the amended petition, which sets forth that these lands owned by the defendant were outside of the jurisdictional limits of the commissioners and could not' be reached or affected by any assessment that they might make, but that they were lying contiguous to this improvement; that the improvement was a special benefit to these lands ; and that it was on that account the defendant made his promise to contribute toward the cost of the improvement. We think that that states a valuable consideration.

As to the contention that there is a want of mutuality, because the contract, while executory, could not be enforced against the commissioners because they could not be compelled by Mr. Bevins or others in Michigan to build the road, we are of the opinion that that defense or objection cannot be interposed by Mr. Bevins, after performance by the commissioners. I will read a paragraph on this subject from Parsons on Contracts (6 ed.), page 447 :

“A promise is a good consideration for a promise. And it is so previous to performance and without performance. As if one promises to become a partner in a firm, and another promises to receive him into the firm, both of these promises are binding, each being a sufficient consideration for the other. So a promise by a seller to refund in case of deficiency in the thing sold is a good consideration for a promise to pay for any excess therein. If one promises to teach a certain trade, this is a consideration for a promise to remain with the party a certain length of time to learn, and serve him during that time; but, without such promise to teach, the promise to remain and.,serve, though it be made in expectation of instruction, is void. The reason of this is, that a promise is not a good consideration for a promise unless there is an absolute mutuality of engagement, so that each party has the right at once to hold the other to a positive agreement.
‘‘This has been doubted, from the seeming want of mutuality in many cases of contract. As where one promises to see another paid, if he will sell goods to a third person; or promises to give up a certain sum if another will deliver up certain documents or securities, or if he will forebear a demand, or suspend legal proceedings or the like. Here it is said that the' party making the promise is bound, while the other part3* is at liberty to do anything or nothing. But this is a mistake. The party making the promise is bound to nothing until, the promisee within a reasonable time engages to do, or else begins to do, the thing which is the condition of the first promise.
“Until such engagement or such doing, the promisor may withdraw his promise, because there- is no mutuality, and, therefore, no consideration for it. But after an engagement on the part of the promisee, which is sufficient to bind him, then the promisor is bound also, because there is now a promise for a promise with entire mutuality of obligation. So, if -the promisee begins to do the thing, in a way which binds him to complete it, here is also a mutuality of obligation. But if without any promise whatever, the promisee does the thing required, then the promisor is bound on another ground. The thing done is itself a sufficient and a completed consideration; and the original promise to do something, if the other party would do something, is a continuing promise until that other party does the thing required of him.”

Applying these principles we think it cannot be said the contract lacks mutuality, in the sense that the term mutuality is used here, after there has been full performance upon the one side.

It is suggested that the commissioners are not only without authority to sue upon this undertaking, but that there is no direction in the statute as to the use or disposition that shall or may be made of the funds, after they are recovered, if there should be a recovery, and that, for this reason, there arises an objection to the commissioners going forward with the suit; the inference being, we take it, that if they recover, there being no other place to put the money, they might put it in their own pockets. But Sec. 845 Rev. Stat. provides that:

“ The board of commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and of bringing, maintaining and defending all suits * * * and the money so recovered in any case shall be by them paid into the treasury of the county, and they shall take the treasurer’s receipt therefor and file the same with the auditor of the county.”

Now we come to the consideration of the question which has been most argued by counsel, and to which the most attention has been given in their respective briefs ; and that is whether, admitting that the commissioners are without express authority to enter into this contract; admitting that they may not have sufficient authority, express or implied, so that they could enforce the contract, if entirely executory, and that it cannot be enforced against them, the promise of the persons who agreed to contribute to this improvement may be enforced, since the commissioners have performed and since the parties promising enjoy the benefits which they sought, and on account of which they made the promise.

We cannot find that'there is anything immoral in the promise on the part of the commissioners to carry forward this improvement, if certain contributions are made by others than those who can be required to contribute. Neither can we find that entering into an arrangement of this character is expressly prohibited ; and these facts should oe borne in mind in considering the authorities bearing upon the right of public officers to enforce contracts that they are not in the first instance authorized to enter into. There are certain contracts, which are expressly prohibited, or which are immoral, and clearly against public policy, that are therefore absolutely void. This we do not think was a contract of that character.

It is said that if this improvement was a public necessity, the viewers were bound to say so, and if it was not a public necessity, they were bound to say so, and the question of whether or not it was a public necessity was not to be determined, or their decision upon that question was not to be influenced by promises of the parries who could not be compelled to contribute toward the cost of the improvement.

But we think that there is some discretion vested in the viewers who are called upon to say whether this will be a public necessity, and that some discretion is vested in the commissioners to say whether or not it will be of public utility, that these terms are somewhat flexible, and are not to be regarded with the strictness contended for by counsel for defendant in error. The public necessity or public utility may depend somewhat upon the cost of the thing, and the real question is whether the improvement is of sufficient use and benefit to the parties who will be called upon to pay for it to justify its being constructed; whether it is of sufficient public necessity and public utility to justify laying the cost of it upon the property within two miles of the improvement; and if this cost or expense can be reduced by other contributions, we think that is a fair and proper matter for the commissioners to take into consideration in passing upon the question of the public utility; and that these contributions are not such as may be said to influence the officers improperly in the discharge of their official duty. We think it is a proper influence, and proper to be considered by the commissioners.

There is one case in point, and but one, so far as we can find in support of the contention of counsel for defendant in error, and that he has cited, to-wit, the case of Commissioners v. Jones, Breese (111.) 287. The gist of it is given in the syllabus:

“An agreement to pay the county commissioners of Randolph county a certain sum of money provided they will build a court house on a particular lot, is not binding for want of mutuality, although they do build the court house on the lot designated, the obligation to pay and to build not being reciprocal.
“ A promise to pay the county commissioners to do an act which they are required to do by law is against public policy, and, therefore, void.
“ The county commissioners of a county have no power to contract only as a court.”

In that case the act required them to build a court house, although the act did not require them to build the court house in any particular location or upon any particular lot; the promise to pay was what induced them to build the court house upon a particular lot. Now that was held to have been lacking in mutuality, in disregard of and against public policy, and, therefore, void.

We are not satisfied with the reasoning or conclusions of the learned judge who announced the opinion, and we think it is against the weight of authority; indeed, we find numerous authorities in support of the other doctrine, and this, as I have said, is the only authority running in this way. The opinion was by Justice Smith. The court was composed of four judges, Wilson, Brown, Lockwood and Smith. Wilson concurs in the decision; but says his opinion is founded upon a single objection “ that is does not appear that the contract upon which suit is brought, was entered into by the county commissioners as a court; it is only in that character they are capable of contracting.” So he does not concur in the opinion as to the contract being against public policy and lacking mutuality. It is said that Justice Dockwood gave no opinion; we presume Justice Brown concurred. It is quite an old decision, having been announced in 1827.

Counsel for plaintiff in error did not seem to get hold of the line of decisions on this question which sustain his contention; but we have discovered a number. Some of them are mentioned in 1 Dillon Municipal Corporations (4 ed.), Sec. 458. In this section the author has this to say upon this subject:

“ So, a promise to pay a public corporation, or its agents, a premium for doing their duty is illegal and void; and a contract will not be sustained which tends to restrain or control the unbiased judgment of public officers. But a promise by individuals to pay a portion of the expenses of public improvements does not necessarily fall within this principle, and such promise is not void as being against public policy; and if the promisors have a peculiar and local interest in the improvement, their promise is not void for want of consideration, and may be enforced against them.”

A number of authorities are cited, some of which I desire to refer to briefly, the first being the case of Townsend v. Hoyle, 20 Conn. 1 • reading from the syllabus:

“ Where sundry proprietors of lots fronting on a strip of land» which had been thrown open and occupied as a highway or street in the city of N. H., tv a small part of which G claimed a subsisting and exclusive title, signed a writing address to the city authorities, requesting them to lay out such street according to law, and assess the damages, which the applicants thereby agreed to pay to the city treasurer; and this request having been complied with, A, describing himself as city treasurer, brought an action, founded on the writing, to recover such damages; it was held, that as the promise was neither made with A nor on his account, the action was not sustainable.” Not as to A.
“ Where it was urged, as a further ground of defense to such action, that the undertaking of the defendants was void, for want of consideration, and as being against the policy of the law, it was held, that as the defendant had a peculiar and local interest in the granting of their request beyond that which they had in common with other citizens, they might legally bind themselves to indemnify the city.”

Then on page six, Judge Ellsworth says:

“ Then as to consideration. The defendants are not only benefited in common with other citizens, but obviously they had a peculiar and local interest, and well might obligate themselves to indemnify the city for assuming the burthens and responsibilities of a new public highway.
“ This is all the determination the case calls for; but we must not be considered as assenting to the proposition, that a promise by individuals to pay a part of the expenses of public improvements, ordered by public authority, is of course illegal and void. We think the amount of a public burthen, or the cost to the public of an improvement, may properly enough enter into the question of expediency or necessity. A canal, a railroad, a bridge, a new street, a public square, or a sewer is called for. If made in one way, or in one place, it will be much better for the public, though more expensive; but individuals, especially benefited, stand ready, by giving their land, their money, or their labor, to meet the extra expense. ■ Will these promises be void, as being without consideration or against public policy ? We think not.”

To the same effect is a case in Springfield v. Harris, 107 Mass. 532 [81 Am. Dec. 715]; another in Stilson v. Lawrence Co. (Comrs.), 52 Ind. 213; another, State v. Johnson, 52 Ind. 197. The case at page 197 contains a very full discussion of the question and cites a great many authorities ; it will not be profitable to read these now, but we call especial attention to it as being a satisfactory case. Among others cited there is Commissioners of Canal Fund v. Perry, 5 Ohio 56, 57, 58. It is there held that “ undertakings by written subscription to contribute money or other property, in aid of public works, are valid contracts, that may be enforced in courts of justice.” In that case there was a statute authorizing such contributions, so that the court was enabled to say and did say that the subscription they were called upon to examine did not rest alone upon the general principle that such contracts were enforceable and were not against public policy, but the court expressly approved of the general principle. The decision is by Judge Wright. In the first paragraph of the opinion he uses this language:

“ The first question claiming our attention in this case is, whether the subscription paper, upon which the suit is founded, affords a legal foundation for the action ? It has been repeatedly decided in this state- and elsewhere, that promises to pay money for the erection of school and court-houses, churches and bridges, would, the work being undertaken or done, sustain the action of assumpsit. A moral obligation is sufficient to support an action on an express promise.” Citing cases in Mass.

These authorities we think fully sustain the position of counsel for plaintiff in error. We are not given the benefit of the opinion of the court below; there seems to have been no formal opinion, and it is apparent that the court below did not have before him these authorities, to which I have just referred.

The judgment of the court below upon the demurrer will be reversed and the cause remanded to be proceeded with according to law.


author: HULL, J.

text:
    STREET RAILWAYS — TRIAL.
    [Lucas (6th) Circuit Court,
    July 1, 1902.]
    Haynes, Parker and Hull, JJ.
    Toledo, Fremont & Norwalk Ry. Co. v. David Gilbert.
    1. Repetition oe Questions Properly Refused after Being Answered.
    Where a question has been once asked a witness and answered by bim a court may properly refuse to allow its repetition.
    3. Special Requests Before Argument must be in Writing to be Available on Error.
    To constitute error under Sec. 5190 Rev. Stat., wbicb confers upon parties thé right to have such correct written instructions as may be requested given to the jury before argument, the record must show affirmatively that the requests for instructions were for written instructions, and that the requests were made before argument to give such instructions.
    3. Special Requests Aeter Argument Need not be Specifically Given When.
    A court, after argument, is not bound to give an instruction in the exact language requested by a party, the substance of which is contained in the general charge.
    4. Street Railways’ use of Streets Permitted Because not Considered a Substantial Interference with Rights of Vehicles, etc.
    The right of pedestrians and vehicles to the free use of the streets is not taken away because electric cars have been permitted to run along and over the same. The use of the street for railways is.permitted only because it is considered not to be a substantial interference with such rights. Hence, a person driving upon a street railway track is bound only to the exercise of ordinary care in looking out for cars, and has the right to presume that a car approaching him from the rear will be run with the same degree of care.

      6. “Must Have Exercised”Does not Imply “Did Exercise.”
    An instruction that, “ it was, therefore, not negligence on the part of the plaintiff to drive in the center of this street and along the track of the defendant, but in so doing, plaintiff must have exercised the care that would be exercised by an ordinarily prudent man under tbe same or similar circumstances,” is not improper as calculated to mislead the jury. The words in italics do not imply that plaintiff did exercise such care.
    6. Negligent Running oe a Street Car.
    An electric railway company, operating its cars through the streets of a city where persons in vehicles or on foot are liable to be upon the track, is bound to run its cars in such a manner as will constitute ordinary care under all the circumstances. Hence, a molorman who, after nightfall, runs an electric car along a city street, and approaches, at a high fate of speed, a point at the top of a steep grade, beyond which he cannot see by reason of the glare of an electric light, is guilty of negligence which will render the railway company liable to a person injured while driving upon the track at that point.
    f, “Reasonable Care” and “ Ordinary Care,” Used Synonymously.
    The use of the expression “ reasonable care,” in a charge to the jury, is not misleading where the court uses the correct expression “ordinary care" in the same connection at other places in the charge.
    Heard on Error.
    Kinney, O’Farrell & Rimelspach, for plaintiff in error.
    Charles G. Wilson, for defendant in error, cited:
    A party having filed a general exception to a charge as a whole* without asking the court specifically upon the subject complained of, is bound by the whole charge. He cannot afterwards pick out a single sentence in a paragraph and complain of it. Toledo v. Radbone, 13-23 O. C. C. 268; Shaffer v. Railway Co., 8 Circ. Dec. 66 (14 R. 488) ; Curry v. Cincinnati, 4 Circ. Dec. 545 (12 R. 736); Ohio & Ind. Torpedo Co. v. Fishburn, 61 Ohio St. 608 [56 N. E. Rep. 457]; Take Shore & M. S. Ry. Co. v. Whidden, 13-23 O. C. C. 85.
    Degree of care required of street car company in running its cars. Weiser v. Railway Co., 6 Circ. Dec. 215 (10 R. 14); Pittsburg, Ft. W. & C. Ry. Co. v. Maurer, 21 Ohio St. 421; Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 R. R. A. 276]; Cincinnati & S. G-. A. St. Ry. Co. v. Cumminsville, 14 Ohio St. 523; Coach Co. v. Railway Co., 33 N. J. Eq. 267; Baxter v. Railway Co., 3 Rob. 516 Barker v. Savage, 1 Sweeny 288 (N. Y. Sup. Ct.); Newark Pass. Ry. Co. v. Block, 27 Atl. Rep. 1067 [55 N. J. R. 605; 22 R. R. A. 374]; Attorney-General v. Railway Co., 125 Mass. 515 [28 Am. Rep. 264]; Toledo St. Ry. Co. v. Westenhuber, 12 Circ. Dec. 22 (22 R. 67); Rake Shore &. M. S. Ry. Co. v. Schade, 8 Circ. Dec. 316 (15 R. 424) ; Railway Co. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282]; Coal Co. v. Estievenard, 53 Ohio St. 43, 44 [40 N. E- Rep. 725]; New York, C. & St. R. Ry. Co. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130],
    The degree of care that must be exercised by those in charge of a steam railroad train, is not the degree of care which must be exercised by those' in charge of an electric car upon a public street. Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197, 207, 208 [43 N. E. Rep- 207; 32 R. R. A. 276].
    A charge requested, which has already been given in substance, may be refused. Schweinfurth v. Railway Co., 60 Ohio St. 215 [54 N. E. Rep. 89]; Toledo v. Higgins, 7 Circ. Dec. 29 (12 R. 646); Toledo Elec. St. Ry. Co. v. Cooper, 8 Circ. Dec. 496 (18 R. 824); Stewart v. State, 1 Ohio St. 66,69; Bond v. State, 23 Ohio St. 349; State v. Stout, 49 Ohio St. 270 [30 N. E. Rep. 437].

      The court was justified in refusing to give the charges prepared by counsel, as they charged as a matter of law, that if the plaintiff, " had sufficient time to leave and drive out of the street car track, after hearing the bell,” and failed so to do, he cannot recover, which is not the law. Schweinfurth v. Railway Co., 60 Ohio St. 215 [54 N. E. Rep. 89].
    Damages to horses injured by a car, are not confined to the difference in value of the horses before and after the injury, but there may be added to that, the expense of restoring them to health, and for loss of their use in the interim. Pittsburgh, C. C. & St. E. Ry. Co. v. Kelly, 5 Circ. Dec. 662 (12 R. 341); affirmed, Railway Co. v. Kelly, 53 Ohio St. 667.
   HULL, J.

The defendant in error brought this action in the court of common pleas to recover for injuries which he sustained by being struck by a street car on the track of the plaintiff in error (defendant below), claiming that the street car company was negligent in the manner of running a car and in not seeing him on the track, and that his injuries were due to the negligence of the street railway company. He asked damages in the amount of $175, and was awarded by verdict of a jury the full amount of his claim. A motion for a new trial was overruled, and the court rendered judgment against the plaintiff in error, and it is to reverse that judgment that this proceeding in error is brought.

Various errors aré complained of by the plaintiff in error, upon the trial of the case. In the admission and exclusion of evidence, in the general charge of the court as given, and the instructions which were given at the request of the plaintiff below, and to the refusal of the court to give the requests of defendant below; and further, it is claimed that the verdict was not sustained by sufficient evidence; is contrary to the weight of the evidence, and that, therefore, the judgment of ihe court is contrary to law.

The accident occurred on Woodville street in East Toledo, Ohio. Plaintiff was driving on the track at a point near the Wheeling & Lake Erie Railroad Company’s tracks. He was riding on a hay-rack, and the car struck his wagon and practically demolished it; the horses were thrown to one side of the track and sustained some injury, and Gilbert jumped to the other side and sustained some injury. Gilbert claims that the car was running at a dangerous and negligent rate of speed at the time; that the motorman was negligent in not seeing him and in not stopping or slacking the car before it struck him, so that he might have had time to get off the track.

The railroad company deny all negligence on their part and claim that whatever injuries Gilbert sustained were due to his own negligence There were some exceptions taken during the trial of the case to the exclusion of evidence offered by the defendant below. The defendant below sought to show by the motorman that when he saw Gilbert on the track he supposed he was going to get off. He was asked this question, page 70:

“ Now, when you first saw this man turn on the track, what impression did it make on you — what with reference to what he was going to do or was doing? ”

An objection to this question was sustained and exception taken and the exclusion of this testimony is one of the errors alleged. In this connection, it may be well to state just about what the surroundings were. At the time of the accident the car was starting on its trip to Fremont, and it came on to Woodville street from East Broadway some 1,500 feet from the Wheeling & Take Erie railroad track; and about 1,100 feet from where the car came on to Woodville street from East Broadway, there was an electric light standing in the street. The car had a headlight upon it, and the motorman testified that, on account of the glare of the electric light and the glare of his headlight, he was unable to see beyond the electric light in the direction of the Wheeling & Take Erie railroad crossing, and that he did not see Gilbert on the track with his hay rack until the car was under the electric light and Gilbert was then from 150 to 200 feet off, and he says that as soon as he saw him he rang the gong and Gilbert turned his horses off, but did not get off the track, and the car struck the wagon within a very short space of time thereafter. Now the motorman was asked on page 67 of the record, this question:

“ What was the party who had the wagon doing, if anything, at the time? ”

And he answered:

“ When I first discovered the wagon and started under the light and began to ring the gong hard I noticed the team turn a little to the side, and I supposed that he was going to get out of the way. I kept ringing the gong,” etc.

So it will be seen that the witness had already been asked and answered this question, in substance, which was excluded by the court and which he was not then permitted to answer, and there was no error in the court’s refusal to permit the question and answer to be repeated On page 69 he was asked whether, in his judgment, Gilbert had time to get off the track. Objection to this was sustained and exception taken. We think it very doubtful whether that question was proper; that was a question for the jury — as to whether he had time to get off the track— under all the circumstances as appeared from the evidence. But he had already answered that question. He says, in his answer to a question which had been put to him before that, page 69:

“ I will ask you to state as to whether or not from the time you rang the gong and discovered that team and wagon on the track— whether they had time to leave before you got down to where he was ? A. Yes, sir; they had plenty of time.”

So that there was no error in the court’s refusing to permit that to be repeated; it had been asked once and answered, and that was sufficient at all events.

At the conclusion of the evidence there were certain requests to charge, made by the plaintiff, and others made by the defendant. The record shows this: “ Thereupon, and before the argument, the plaintiff, by his counsel, requested the court to give to the jury before argument, among other requests, the following, to-wit,” and then follow two requests, made by the plaintiff, and which were given. To that exception was taken. Those I will discuss a JUttle farther along. Then this follows in the record: ‘‘And the defendant likewise submitted to the court certain requests which it asked to be given to the jury before argument, as follows, to wit,” and then follow certain requests to charge made by the defendant, some of which were given and some refused, and exception to the refusal was taken in this language: “ Thereupon the defendant by its counsel excepted to the refusal of the court to give to the jury in charge defendant’s request number four; and defendant likewise excepted to the refusal of the court to give in charge defendant’s request numbered six; and defendant likewise excepted to the refusal of the court to give to the jury in charge defendant’s request numbered seven, all as above set forth.” Error is claimed here on account of the refusal of the court to give these requests of the defendant below. These requests, it appears by the record, were made before argument, as the language of the record is as I have read: “ And the defendant likewise submitted to the court certain requests and which it asked to be given to the jury before argument, as follows, to-wit.” They were made under paragraph five of Sec. 5190 Rev. Stat., which gives to counsel this additional right (which was not had before) to submit instructions, in writing, before argument and have them given to the jury before argument. It reads as follows:

“ When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.”

To constitute error in the action of the court under this provision, however, the record must show affirmatively that the provisions of the statute were complied with. As is said by the Supreme Court in the case of Monroeville (Vil.) v. Root, 54 Ohio St. 523 [44 N. E. Rep. 237]:

“Section 5190 Rev. Stat., as amended March 3, 1892 (89 O. R. 60), confers upon parties the right to have such correct written instructions as may be requested given to the jury before the argument.”
“ To constitute error under this provision of the statute, the record must affirmatively show that the court was requested to give such instructions before the argument and that its refusal to do so was the subject of an^exception. ”

In this case decided by the Supreme Court the record did not show affirmatively that it was requested that the instructions be given before argument. The language of the statute being that “ either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the"court before the argument to the jury is commenced.” The Supreme Court say, in the opinion, on pages 527, 528:

“ But, notwithstanding this provision of the statute, it must frequently, if not usually, be a matter of indifference to counsel whether the requested instructions precede or follow the argument. And it will Still be proper for counsel to present their requests to the court before argument, even if they are willing that they should be given after it. The record submitted to the circuit court did not show that this was not a case of that character. It does show that the propositions were submitted to the trial judge before the argument, and that there was a request that they be given to the jury. But it does not appear that it was desired that they be given before the argument. Nor does the exception show that it was taken to a refusal to give the instruction before the argument. It cannot be inferred from this record that the attention of the trial judge was in any way called to the right conferred by the amended statute. There was, therefore, no case for a reversal upon the ground stated by the circuit court.”

And the circuit court was reversed. This record before us does not show that these instructions that were requested of the court were written instructions; it simply shows that the defendant submitted to the court certain requests which they asked to be given to the jury before argument, and shows that the court gave some of the instructions. It does show that the court read those which were given, and if there could be any inference at all it might be inferred that those were committed to writing, or printed, by some one, but by whom it does not appear. And as to those which were refused, the record shows nothing, and for aught that appears in the record, the requests, as is often the case after argument, may have been the oral requests of counsel, and not made in writing. To constitute error in the action of the court in this respect, the record must show affirmatively that the requests fot instructions were written requests, which the statute clearly contemplates the court shall have opportunity to examine and deliberate upon, if it desires, before they are given to the jury or refused.

This record does not show that the exceptions were taken, as suggested by the Supreme Court in this case to which I have referred to the refusal of the court to give the requests before argument. The record states: “ Thereupon the defendant by its counsel excepted to the refusal of the court to give to the jury in charge defendant’s request number four,” etc. But it is sufficient to say that the record does not show, affirmatively, that these were written instructions; that they had been prepared by counsel in writing before they were- requested of the court; and if these requests which were refused were covered by the general charge, no error can be predicated upon the action of the court in refusing to give these requests before argument, for in case of requests made after argument, and refused by the court, if they are substantially given in the general charge, the party cannot complain, as was held by the Supreme Court in the case of Schweinfurth v. Railway Co., 60 Ohio St. 215 [54 N. E. Rep. 89], where the court say:

“ It is error to reverse a judgment for the refusal to give an instruction requested by a party, the substance of which is contained in the charge given, or one that contains an inaccurate statement of the law, or assumes the existence of a material fact in dispute.”

So if the substance of the request is given in the general charge, where the request is made after argument, it is not error to refuse the request; in other words, the court is not bound to give the instruction in the exact language requested by counsel, if it is given in substance in the general charge. And on examination of the general charge in this case we think that these requests, so far as they were proper and the defendant below was entitled to have them given, were given by the court in the general charge, and these requests are to be considered the same as though they were not requests asked to be given before argument, but as though they had been requested after argument.

We, therefore, find that the record does not show any error in the action of the court in refusing these requests. It is not necessary to discuss the requests in detail, but we hold that they were substantially covered, in so far as they were proper, by the general charge of the court.

The defendant below excepted to the giving of two instructions that were given at the request of plaintiff below- Request No. 1 was as follows :

“ Woodville street in the city of Toledo was originally laid out and established for the use of pedestrians and vehicles ; and this use has not been taken awajr because electric cars have been permitted to run along and over the same. The use of streets for railways is allowed only because it is considered not to be a substantial interference with their free and unobstructed use as highways.”

This portion of the instruction is based practically upon the decision of the Supreme Court in the case of Cincinnati St. Ry. Co. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 R. R. A. 276], and some of the language contained is perhaps taken from the words of the opinion in that case. No serious objection is made to that part of the request, but the following paragraph is objected to :

“ It was, therefore, not negligence on the part of the plaintiff to drive in the center of this street, and along the track of the defendant, but in so doing, plaintiff must have exercised the care that would be exercised by an ordinarily prudent man under the same or similar circumstances.”

The particular language objected to is this: “But in so doing, plaintiff must have exercised the care that would be exercised by an ordinarily prudent man,” etc. Defendant’s counsel argue that the use of the words must have exercised the care,” was improper and erroneous; that it amounted to charging the jury that the plaintiff below did exercise such care when the court stated to the jury that he must have exercised such care. It does not seem to us, considering those words in connection with all the court said in this paragraph, that they would bear that construction, but that they meant to the jury simply that the plaintiff should exercise care, or ought to exercise care. If the word must is used at all, it is difficult to see how any expression could have been used different from that which the court did use. He could not have said that the plaintiff must exercise, for that would have been the present, or the future, and this related to the past. ■ This instruction, “ but in so doing plaintiff must have exercised the care,” etc., we think the jury must have understood to mean simply that it was the duty o the plaintiff to exercise ordinary care, and there was no error in the court giving this instruction as written.

Request No. 2 was given, and it was also excepted to. We are of the opinion that this instruction, as a general proposition of law, is too broad and goes too far in laying down the duty of the railroad company to observe and look out for persons upon the track and to slacken its cars when the motormen observe them upon the track; that it goes farther than the company should be required to go and imposes more on the railroad company than the law requires. The instruction might be construed to mean that whenever a motorman saw a man on the track, however far he was away, it was his duty to at once get his car under control and slacken its speed so that he might stop it in case the man did not get off the track. This, it seems to us, leaves out the doctrine of ordinary care and the presumption that the motorman might have that the man would get off the track in time to avoid injury, so as a proposition of law, relating to a case where a man had been seen for some distance ahead of the car on the track, when he might be presumed to get off in time, we think this instruction goes too far; but we are to consider whether it was error to give it under the facts of this case.

The negligence in this case, if there was any negligence, consisted in allowing the car to run at a negligent rate of speed before the car reached the electric light. According to the testimony, there was at this place in the street quite a steep grade and the electric light stood at the brow of the hill in the road. The motorman testifies that he couid not see beyond the electric light, on the night in question, on account ot its glare and the glare of the headlight, and when he did see the plaintiff that he was within from 150 to 200 feet of him, The testimony shows that this car was running at quite a high rate of speed, just how many miles an hour it was running, of course, cannot be exactly determined. Gilbert testifies that it looked to him as though it was going at least forty miles an hour, and almost immediately after he saw it it struck his wagon. The conductor and motorman thought it was not going over eight or ten miles an hour; but it is clear that it was going at a high rate of speed; that it was going so fast that after the motorman discovered Gilbert upon the track, as he himself testifies, he was unable to stop the car before it struck Gilbert’s wagon, the car being on the grade, and there being snow on the ground at the time and the track slippery. And the negligence of the company consisted in the motorman’s running the car at such a high rate of speed before he reached the electric light and at such a speed down the grade in the street into the darkness, or what to him was darkness, where he could not see any object until he reached the electric light. We are of the opinion that ordinary care required him, running his car upon the hill in the middle of the street as this was, to have his car under such control and to be running it at such a rate of speed that in case he discovered a man on the track in the vicinity of the electric light, he would be able to stop the car. He knew this was a highway and knew it was being used for travel and was in the city of Toledo and that there was liable to be on the other side of the electric light some one on this track, and it turned out that there was, and he was bound to run his car with this state of facts in mind, to run it according to the circumstances that existed there. He was not permitted to run his car as though no one had the right to use the track except the railroad company, as laid down by the Supreme Court in Cincinnati St. Ry. Co. v. Snell, supra, where the question is fully discussed as to the rights of the public and the rights of the railroad company, each being equally bound to exercise ordinary care in keeping a lookout. The railroad company is bound to the exercise of ordinary care in regard to people upon the track, and looking out for cars. The traveler is to exercise ordinary care in getting off the track, and the railroad company has no exclusive right to use that portion of the street upon which its track rests. So it appears to us that, according, to the testimony of the motorman himself, he was guilty of negligence in approaching this hill at this rate of speed, when he was unable to see beyond the electric light. He says in his testimony that he did not see the man until he was near the brow of the hill under the electric light, and then he at once rang the gong and had not rung it loudly until then, and that he at once applied the air as hard as he could and put sand on the track. This he says on page 69 of the record. And on page 70 he says the track was slippery and he was not able to Stop the car; that the wheels were locked by the brakes and slid.

Now the motorman having been guilty of negligence before he saw Gilbert, in approaching this portion of the track at 'the high speed he did, we are of the opinion that the giving of this instruction was not prejudicial to the defendant below, and that, therefore, the case should not be reversed on that account. It was, it may be said, the duty of the motorman, as is said in this instruction, under the facts and circumstances of this case, when he discovered this man on his wagon, only 150 feet or a little more away, and his car on this slippery track, going at the rate of speed at which it was going, it was his duty in the exercise of ordinary care, to do all he could to stop the car and prevent the possible sacrifice of human life and the destruction of property, which was imminent when the motorman discovered that Gilbert would not be able to get off the track before the car reached him.

It is argued strenuously, that the verdict was against the weight of the evidence and not sustained by sufficient evidence. The discussion already had on the instructions has covered that part of the case to some extent. The railroad company were bound to use ordinary care in the running of their cars. The track was in the middle of a public street, of the city of Toledo; the cars were.heavy, a car weighing, it was said, some thirty tons; and the company knowing that travelers, in vehicles or on foot, were liable to be upon the track at that time and place, were bound to run their cars with that in view and in such a manner as would be ordinary care under all the circumstances and facts, and we are of the opinion that it was negligence for the motorman to approach this grade in the street at the high rate of speed with which he did without having his car under control so that he might slacken its speed or stop it in case he discovered any one on the track beyond the electric light.

It is urged that Mr. Gilbert himself was guilty of contributory negligence. He testifies that he looked for cars when he turned onto Wood-ville street at Bast Broadway, which was about 1,100 ieet from the electric light, and saw none, and that when he reached the brow of the hill, just before he began to descend, he again looked, being then about 1,100 feet from Bast Broadway. He neither saw nor heard any car,, and he then began to descend the hill and was then approaching within a few hundred feet of the Wheeling & Bake Brie railroad, which would require some attention on his part, and after starting down the hill he did not look again until he heard the gong of the street car as it passed under the electric light, and he theu looked back and saw the car coming down and turned his horses and endeavored to leave the track, and his horses got off the track and his wagon was turned partly off the track, when he saw that the car was about to strike his wagon and he jumped to the side of the track opposite to where his horses were and saved his life. The car struck the wagon and cut it in two, and the horses were thrown over the embankment, the harness and wagon were destroyed and the horses somewhat injured. The “ binding-pole ” on the hay rack struck the front end of the car and punched a hole through the end of the car. The car went some fifty feet beyond the spot where the wagon was struck before it could be stopped.

We think that here was a fair case to submit to a jury as to whether or not Gilbert exercised ordinary care. He had a right to drive on the street car track. The laying of a street car track on a street does not exclude the public from that part of the street. Street cars are permitted in the streets, as the Supreme Court say in Cincinnati St. Ry. Co. v. Snell, supra, for the reason that they do not interfere materially with the ordinary travel or obstruct it, and if they did, they would not be permitted in the streets. The street car is only another kind of a vehicle from a wagon, for the convenience of travelers, and persons and corporations in propelling them over the street must exercise care in running them the same as one driving a wagon or automobile, and Gilbert had the right to presume that the car, if any was approaching him from the rear, would be run with ordinary care. He was bound to exercise ordinary care in looking out for cars, but he was not bound to that high degree of care that he would have been if he had been riding or driving on a steam railroad track, where he had no right tó be. Here, he had the same right that the street railroad company had, and was bound the same as it to the exercise of ordinary care; and he having looked twice for cars within a comparatively short space of time on this street, and being at that time approaching a steam railroad track, with that to look out for, and having seen no car'approaching from behind and heard none, we think that the jury were fully warranted in finding that he did exercise ordinary care, and that they were justified in finding that the street railroad company was negligent.

Some portions of the general charge are complained of and especially the language of the court in saying to the jury that the street railroad company were bound to use' reasonable care — every reasonable effort, to avoid injury to persons on the tracks. This expression is used two or three times in the charge in connection with other language, however, and the jury was instructed in other places in'the charge that the railroad company was bound only to use ordinary care the same as Mr. Gilbert, and we are of the opinion that there was no prejudicial error in the use by the court of this expression and that the jury were not misled by it. No special exception was taken to this expression or to any part of the charge by counsel. A general exception only was taken to the charge as a whole, and we think that the charge as a whole stated the law fully and fairly.

On the whole record we are of the opinion that the case was fairly tried — fairly submitted to the jury, and that the verdict was fully sustained by the evidence. We find no errors in the record to the urejudice of the plaintiff in error. The judgment of the court of common pleas is, therefore, affirmed.