text:
    ACTION — TURNPIKES—VENUE.
    [Hamilton (1st) Circuit Court,
    December 4, 1909.]
    Giffen, Smith, and Swing, JJ.
    Cincinnati, Columbus & Wooster Tpk. Co. v. Milford (Vil.).
    1. Action fob Compensation foe Pike Used foe Street Purposes must be Brought in County Containing Municipality.
    An action by a turnpike company under Gen; Code 3719 to recover compensation for a portion of its roadway, lying within the corporate limits of a village, taken possession of and used for street purposes, is transitory in character; hence, it must be brought in the county in which such village is situated.
    2. Village Situated.in Two Counties Sued in County of Situs.
    Where a village is situated partly in one county and partly in another it must be sued in the county in which it has its situs.
    Error to common pleas court.

      Thorne Baker, for plaintiff in error.

      D, W.. Murphy, for defendant in error.
    The turnpike company brought an action to recover compensation for something over a mile of roadway, which it was claimed the village had taken possession and is using as a street without first making compensation therefor. The defendant denied that, it was liable to be sued in Hamilton county, for the reason that it is an incorporated village situated in both the county of Hamilton and the county of Clermont, but has its principal seat of government, mayor’s office and. place of business in Clermont county, and has no seat of govemment, mayor’s office or place of business in Hamilton. The court below held for the village.
   GIFFEN, P. J.

An action under Gen. Code 3719, to recover from a city compensation for a turnpike included within the corporate limits, is under the code, not local, but transitory in character, and must be brought in the county where the defendant resides or may be summoned. The defendant in error is situated partly in two counties, but has its situs in Clermont county, where it must be sued in such action. Fostoria v. Fox, 60 Ohio St. 340 [54 N. E. Rep. 370].

Judgment affirmed.

Smith and Swing, JJ., concur.


source: Caselaw Access Project

author: VOORHEES, J.

license: Public Domain

text:
    WILLS.
    [Licking (5th) Circuit Court,
    March Term, 1909.]
    Taggart, Donahue and Voorhees, JJ.
    Frank Wilson et al. v. Joseph B. Wilson.
    Mental Incapacity not Shown by Recital of Circumstances Indicating Physical Weakness, Failure of Memory, Slight Mistakes in Business Affairs, nor by Failure to Make Kind of Will Witnesses Would Have Made.
    Want of mental capacity on the part of the testator is not shown by a recital of circumstances and incidents which go no further than to indicate some physical weakness, or failure of memory, or mistake of an unimportant character in connection with his business affairs; nor can an attack on a will be successfully maintained where the witnesses for the contestants seem to have reached the belief that the testator was incompetent to make a will because he did not make the kind of a will which they would have made or which they thought he ought to have made.
    [Syllabus by the court.]
    Error to common pleas court.

      A. A. Sta-sel and Flory & Flory, for plaintiffs in error.

      Kibler & Montgomery, for defendant in error:

      Cited and commented upon by tbe following authorities: Thompson, Trial Ev. Sec. 1121; Windisch v. Opp, 9 Circ. Dec. 516 (17 R. 465); 2 Ene. Evidence p. 841; Hayes v. Candee, 75 Conn. 131 [52 Atl. Rep. 826] ; Page, Wills Sec. 125; 'Smith v. Henline, 174 111. 184 [51 N. E. Rep. 227] ; Hall v. Hall, 78 Ohio St: 415.
   VOORHEES, J.

The will of James P. Wilson, the validity of which is' the question in controversy in this action, and under review in these proceedings in error, was made on January 5, 1900,. at his office, or place of business, at the village of Granville,, in the county of Licking, Ohio. The testator died June 7,, 1906, being then of the age of about seventy-six years. At the time the will was executed, he was about seventy years old. He died leaving Susan Wilson, his widow, and three children, two sons and a daughter, namely: Joseph B. Wilson, Frank Wilson and Mary Wilson.

The said Joseph B. Wilson contests the will on two grounds, namely:

First. That by reason of age, disease and other causes, said James P. Wilson was incompetent mentally to do or understand ordinary business transactions, or to understand or appreciate what he was doing when he signed said will; that he was then of unsound mind and memory; that he had not sufficient mental capacity to know or understand the extent of his estate and the persons who would naturally be the objects of his bounty.

Second. That said will was procured to be made and executed by the defendant, Frank Wilson, by persuasion and undue influence exercised by him at and before the time of the making of said will, over and’upon the mind and will of said James P. Wilson, by which said James P. Wilson, against his will, was wrongfully induced to favor said Frank Wilson and his children, namely: James Perry Wilson and Eva Wilson, (who are made defendants in said action) in the disposition of testator’s property; that testator’s mind, without any just cause or reason, became set against said contestant, Joseph B. Wilson, causing testator to discriminate against him in making said will.

After the-death of said James P. Wilson, said will was admitted to probate ánd record by the probate court of said Licking county.

The testator by the will in question gives all his property, real and personal, wherever located, to his wife, Susan Wilson, during her natural life. At the death of his wife, he devises and bequeaths to his son, Joseph B. Wilson, the farm on which he, Joseph, then lived, containing 111 acres, more or less. If the said Joseph should die without issue of his body, then at his death said farm of 111 acres to go back to his testator’s legal heirs.

To his daughter, Mary Wilson, he gives his farm situated in Crawford county, Ohio, containing 77 acres, more or less; also the old Water Cure house and lot 120 and lot 128 situated in the village of Granville, Licking county, Ohio; also all his household goods. To his son, Frank Wilson, he gives what he designates his home place of 15 acres, lying just south of Raccoon Creek in Granville township, Licking county, Ohio; also the three lots in the village of Granville, with the appurtenances thereto belonging; also to his son, Frank, the Eggleston farm, containing 126 acres, more or less, said farm lying along the Alexander road in said' county.

To his grandson, James Perry Wilson, he gives $1,000; and to his granddaughter, Eva Wilson, he gives the property known as the Aken property, situated in the village of Gran-ville. If any property should be left after paying the demises provided for, the balance to be divided equally between his ' said daughter, Mary, and his son, Frank.

He named his daughter Mary and his son Frank executors, without bond.

The testator had made a prior will in the year 1898 or 1899, written by J. C. Maylone (who was a witness for the contestant in this trial), and through or by the disclosure by this' witness of the contents of said will written by him to some of the family, among them to the contestant Joseph, the old gentleman afterwards, and in about a year or less from the making of said will, made the will in question, securing the services of a different scrivener to write the second or last will. Just what the provisions of the first will were, or wherein it differed, if at all, from the last will, is not disclosed by the record in this case.

The testator at the time the will in question was made, owned an estate, real and personal, estimated in amount in the neighborhood of $50,000. He. had been a thrifty man in the accumulation of property. He was an uneducated man; in the language of some of the witnesses “a self-made man,” and a shrewd dealer in business matters. He was able to make money at times when pthers were' feeling the effects of general depression and dullness in business affairs. He continued to carry on his business (that -of a lumber dealer), some four or five years after the making of the will in question, being assisted at times in some of the office work, in the way of keeping his accounts, by his daughter, Mary, and his son, Frank, was in some way connected with the lumber business with his father,, but as a general thing the business was managed by the old gentleman himself.

The facts bearing upon the want of testamentary capacity offered in behalf of the contestant, namely: Richards, Partridge, Jones, Agey, Maylone, Jos. B. Wilson and Scott Ramey, there is an inherent weakness in their testimony, in the facts and circumstances related and detailed by them, upon which, their opinion is based, as to the want of mental capacity of the testator to transact ordinary business. Without undertaking to give in detail the facts, incidents and circumstances related by these several witnesses upon which their opinions are based,, it will be sufficient to state that the circumstances and incidents tend to show some physical weakness, failure of memory, and slight mistakes made by the testator in connection with his business affairs, but when tested by reason and the experience of mankind, these circumstances and incidents are such that may occur with persons where there would be no question, of their ability to transact ordinary business. Take, for, example, the incident where the old gentleman on one occasion ’had lost his pocketbook, and spent some hours in hunting for-it. It was lost in the office. Just how it was lost or what he was doing with his pocketbook when it was misplaced is not disclosed, but it seems that this incident is greatly magnified by the witnesses in giving an account of it.

Take the incident mentioned by Mr. Jones, where he had settled a business matter with the old gentleman, whereby .a note was given by Mr. Jones to Mr. Wilson. After the note was executed, the old gentleman requested Mr. Jones to keep .it in his, Jones’, safe. It seems that the old gentleman had no safe at his place of business at the lumber yard. If this circumstance or incident has any significance at all, it is simply this, showing the great confidence that Mr. Wilson had in Mr. Jones, a man with whom he had had numerous dealings. He seems to have had more confidence in the honesty of Mr. Jones than Mr. Jones had himself, because Mr. Jones gives this as an incident or circumstance, in his judgment, showing want of business capacity in Mr. Wilson.

, Looking to the testimony of Mr. Richards,' the scrivener who wrote the will, he gives as his reasons why, in his judgment, the old gentleman was incompetent to do business, that wdien he (Richards) called at the office at the lumber yard on the morning, to write the will, that he was there some fifteen minutes and nothing was said by the old gentleman as to the business that he wished Richards to transact.

Finally, Richards said to the old gentleman that “Frank (meaning the son of the testator) came to my house and requested me to come down and write your (Mr. Wilson’s) will;” the old gentleman said: “I suppose I will have to”; the witness says to him: “You don’t have to do anything of the kind”; the old gentleman then said: “Well, write it”; and witness sat down and wrote Mr. Wilson’s will. The witness testifies that the items and terms of the will were given .and dictated to him by the old gentleman; that they were at the office alone, Frank, the son, coming into the office once or twice while the will was being prepared. He said nothing the first time he came in, but the second time he mentioned ■the Eggleston farm, but what he said about the Eggleston farm witness does not remember. After the will was finished and the witness and Frank were going out of the office up street, Frank said that “Joe’s wife ought not to have that property after his death, ’ ’ that is, the property on which Joseph resided. The testimony of this witness seems to be very indefinite in many of the details as to the transactions that occurred at the time the will was written; and in the cross-examination his capricious answers to .many of the questions tend largely to weaken his testimony.

When you examine the testimony of the witnesses for the contestant, who have given opinions as to the mental capacity of Mr. Wilson to transact business, it seems to be influenced very largely by their notions as to what kind of a will Mr. Wilson should have made. In other words, because he did not make such a wall as they would have made or thought he should make, they were led to believe that he was mentally incompetent to transact business. Taking the will itself, its terms and conditions, dictated, as the scrivener says it was, by Mr. Wilson himself without suggestions from him or anyone, or the items given, there is nothing inherent in the will or language used that tends in any way to show a want of comprehension of the business in which he was engaged, the extent of his property, or the objects of his bounty. The only thing that these witnesses are inclined to complain about was, that the devise to Joseph was not what they would have made or thought it should be. The theory of the law is that a testator who is competent and free from restraint, has a right to dispose of his estate in any way he may deem best. He is not required to make an equitable will, and he may, if he chooses, exclude his children, or divide the estate among them unequally. The question in all such eases is: Was the will the free act of a competent testator? Looking to the testimony and evidence offered by the propounders of the will, and the experience that these witnesses had with Mr. Wilson in a business way, and the numerous transactions had with him, covering a long period of time, not only before the making of the will in question, but for some years after its execution, shows that the opinions that they gave as to the competency of Mr. Wilson are based upon facts and circumstances entitled, in the judgment of this .court, to greater weight than the circumstances and facts detailed by the witnesses for the contestant, and without going into detail, the court is of the opinion that, from all the testimony in this case, the verdict of the jury is so clearly unsupported by the weight of the evidence as to indicate some misapprehension or mistake, or bias on the part of the jury, or of wilful disregard of the law as given by the court in its charge.

We think it comes within the rule that a reviewing court,, where" the verdict of a jury is manifestly against the weight of the evidence, that it is the duty of the court to set aside the verdict, and grant a new trial.

Upon the issue as to undue influence, we think that the weight of the testimony is against this proposition, and there is. not that preponderance of evidence upon either issue that would warrant the jury in returning the verdict they did in this case. Therefore, 'for this reason, the judgment in this case will be. reversed.

So far as the charge of the court is concerned, and its-rulings upon the requests asked by the respective'parties, we do not think there was any error committed. Some of the requests that were refused were abstract legal propositions, in the main correct, but there was no special reason why they should be given, because they had no application, especially to the facts and circumstances of- this case; and, therefore, we think that where the court refused to give the special requests, there was no error committed.

In the general charge, the court covers substantially the whole of this case, and had the jury applied the facts to the law as given by the court, we think that there necessarily would have been a different verdict returned. It seems that the verdict is the result either of a misapprehension of the charge of the court as to the law, or bias and prejudice in favor of the contestant, and that they must have, caught the spirit that, was breathed forth in the testimony of several of the witnesses, and the reason they thought the old gentleman was not competent to make a will was, that he made a will different from what they would have made.

The verdict and judgment of the court rendered in this case are reversed, with costs, set aside and held for naught, and the cause remanded to the common pleas court for further proceedings and trial according to law.

Exceptions are noted.

Taggart and Donahue, JJ., concur.


author: SMITH, J.

text:
    ATTACHMENT AND GARNISHMENT — PROCESS.
    [Hamilton (1st) Circuit Court,
    January 11, 1909.]
    Giffen, Smith and Swing, JJ.

      Northern Pacific Ry. v. Jacob Baum.
    Foreign Corporation Haying no Place of Business as Officer in COUNT! SeBVABLE WITH SUMMONS NOT EXEMPT FROM ATTACHMENT before Justice of the Peace.
    The provisions of the civil code, relating only to jurisdiction over the person are not applicable to R. S. 6489 (Gen. Code 10253), relating to attachment of goods only; hence, the right of attachment against personal property of a foreign railroad company, having no place of business or officer upon whom summons can be served within the county, is given under R. S. 6489 (Gen. Code 10253), and such a company is not exempted from attachment by the provisions of R. S. 6478 (Gen. Code 10239).
    Error to common pleas court.

      George Eoadly, for plaintiff in error.

      Jacob Shroder and Joseph B. Derbes, for defendant in error.

      Affirmed, Northern Pacific Ry. v. Baum, 81 O. S. 386.

   SMITH, J.

In this ease we think the judgment of the court below should be affirmed. The proceeding as instituted in the magistrate’s court was in attachment against the plaintiff in error within the provisions of R. S. 6489 (Gen. Code 10253), and personal property of the railway company was attached.

The plaintiff in error contends that under R. S. 6478 (Gen. Code 10239) it is exempt from such proceeding. We think, however, that this action relates only to the service of process against a railroad company under certain restrictions whereby jurisdiction of the corporation is personally sought and is not in conflict with R. S. 6489 (Gen. Code 10253), where jurisdiction over property of a foreign railway company is secured by an attachment; whereupon R. S. 6496 (Gen. Code 10262) and following sections provide how the matter or thing attached shall be disposed of and upon its sale the manner in which the proceeds shall be applied to the payment of the indebtedness.

It is not sought to bring the corporation personally into court, but the plaintiff in error being a foreign corporation with no officer upon whom a summons can be served or place of doing business in the county and the claim being a debt or demand arising upon contract, the right of attachment against the property of such a corporation is given by this section. It is evident that the sections of the code of civil procedure relating only to the jurisdiction over the person are not applicable under the section relating to attachments where jurisdiction is sought to be obtained over the property attached. We are of the opinion therefore there is no error in the judgment of the court below and the same is affirmed.

(jiffen and Swing, JJ., concur.


author: SHIELDS, J.

text:
    EVIDENCE — WILLS.
    [Knox (5th) Circuit Court,
    March 17, 1911.]
    Powell, Voorhees and Shields, JJ.
    Wilmer A. Tims v. Cornelius V. Tims et al.
    1. Validity or Will upon Contest Sustained only When Executed Pursuant to Statute.
    Upon a contest of a will, its validity will be sustained only when it appears that such will was executed in accordance with the provisions of Rev. Stat. 5916 (Gen. Code 10505).
    2. Testator Required to Both Subscribe and Acknowledge Will in Presence or Subscribing Witnesses.
    The provisions of R. S. 5916 (Gen. Code 10505) require that the testator shall not only subscribe but acknowledge the will as his will, in the presence of two subscribing witnesses.

      3. Failure op Testator to Declare Paper Writing His Will to Subscribing Witness not Present at Writing Invalidates Will.
    T signed what purported to be his will and the same was signed by the scrivener thereof and a son of said testator as witnesses thereto, but the latter was not present when said paper writing was written, nor did said testator make known to him that said paper writing was his will. Held, that said paper writing was not subscribed and acknowledged as contemplated by the provisions of said R. S. 5916 (Gen. Code 10505), and the same is not therefore a valid will.
    4. Exclusion op Testimony op Contradictory Statements op Subscribing Witness as to His Knowledge of Instrument Signed, Erroneous.
    Where testimony is offered on the trial by the contestants of an alleged will tending to show that one of the witnesses thereto made contradictory statements at different times touching his knowledge that the paper writing signed by him as such witness was subscribed and acknowledged as testator’s will, it is error upon tile part of the trial court to exclude such testimony.
    [Syllabus by the court.] ■
    Error to common pleas court.

      Wilkins, Owen & Carr, for plaintiff in erfor.

      F. O. Levering, for defendants in error:
    Cited and commented upon by the following authorities: / Baudehaugh' v. Shelly, 6 Ohi'o St. 307; Haynes v. Haynes, 33 Ohio St. 598 [31 Am. Rep. 579] ; Keyl v. Feuchter, 56 Ohio St. 424 [47 N. E. Rep. 140].
   SHIELDS, J.

The proceeding in the court below was brought to contest the validity of the last will and testament of A. W. Tims, deceased.

The petition is in the usual form, and in substance alleges that on September 26, 1907, A. W. Tims, a resident of Knox county, Ohio, died in this county, and was possessed of certain real and chattel property; that the plaintiff is an heir at law, being a son of said decedent; that a certain paper writing purporting to be the last will and testament of the said A. W. Tims, under date of September 14, 1907, was presented to the probate court of said county and was on November 23, 1907, admitted to probate by the probate court of said county; that letters testamentary were issued thereon by said probate court to the defendant, Cornelius V. Tims, as executor; that the defendants, except Caroline Sheedy, are heirs of the said A. W. Tims, and his children, and by the terms of said paper writing are named as devisees and legatees of the said A. W. Tims, including the plaintiff, Wilmer A. Tims, and Caroline Sheedy, the wife or relict of A. W. Tims, named as devisee, and Caroline Sheedy, as administratrix of John Tims, deceased. The plaintiff avers that said paper writing is not the last will and testament of the said A. W. Tims, and therefore prays that an issue may be made up and tried as to whether said paper writing is the last will and testament of the said A. W. Tims, and that the same may be set aside, and that the same may be found and declared not to be the last will and testament of said A. W. Tims.

The defendants, Cornelius Y. Tims, Eose Coile, Joan Tims and Caroline Sheedy, individually as well as administratrix of John Tims, deceased, answer and say that they admit the death of A. W. Tims, who was possessed of certain real estate and chattel property, and that the plaintiff is an heir of said decedent; they admit that said A. W. Tims made a last will and testament under date of September 14, 1907, which was admitted to probate by the probate judge of said Knox county on November 23, 1907, and that letters testamentary thereon were duly issued to the defendant, Cornelius Y. Tims, as executor, who qualified and has been acting as such; they further admit that all the defendants named in the petition, except Caroline Sheedy, are heirs at law and legatees in said last will and testament, and that the defendant, Caroline Sheedy, formerly- Caroline Tims, was made a devisee and legatee under said last will and testament, as the widow of A. W. Tims; they further answer, denying all the allegations in the petition other than those expressly admitted to be true, and say that A. W. Tims was, at the time of making said last will and testament, of sound mind and memory; that he was not under any undue influence whatever, and that he was not persuaded or coerced into signing said last will and testament, and that he made the same freely and voluntarily, and they pray that the issue may be made up as to whether said paper-writing is the last will and testament of the said A. W.. Tims,, and that the saíne may be declared to be the valid last will and testament of A. W. Tims.

With the issue thus made up by the petition and answer of the defendants, trial was had, and at the close of the evidence on behalf of the plaintiff a motion was made by the defendants that the court instruct the jury to return a verdict for the defendants, which motion was sustained by the court, and the jury was so instructed, and a verdict was thereupon returned for the defendants, and in favor of sustaining said last will and testament. A motion for a new trial was filed, to set aside the verdict for numerous errors assigned, which motion was overruled, and exceptions taken, and judgment was rendered on the verdict. Error is now prosecuted to this court, and the petition in error recites the following grounds of error: First, said court erred in overruling the motion of plaintiff in error for a new trial. Second, said court erred in its directing the jury to bring in a verdict sustaining the will. Third, said judgment was given for the defendants when it ought to have been given for the plaintiff-.

The principal error complained of is that said last will and testament is invalid for want of due execution under the law. The record discloses that A. W. Tims died September 26, 1907, leaving what purports to be his last will and testament, in the words following, to wit:

“In the name of the Benevolent Father of All:
“I, A. W. Tinis, knowing the-uncertainty of human life, do this 14th day of September, 1907, make and publish this, my last will and testament.
“Item 1st. I do hereby give and bequeath to my wife, Caroline Tims, during her natural lifetime, if she does not remarry, all my real estate, consisting of about one hundred acres, upon which I now live. If she re-marry, the property is then to be divided equally among my six children. At the death of my wife the farm shall be sold, and each of children share equally.
“Item 2nd. I give and bequeath to my son, Cornelius V., 'Three Thousand Dollars in money or promissory notes of which I am seized at my death.
“Item 3rd. To my son, John, I give and bequeath the sum of Two Thousand Dollars , in money or promissory notes of which I am seized at my death.
“I authorize'my son, Cornelius, to collect enough on outstanding notes to pay him for notes which he holds against me, and also $105.00 for which he holds no note. All money or notes not disposed of in this will shall be put on interest and used by the family. (Over.)
“I do hereby malte and appoint my son, Cornelius V. Tims, without bond, as executor of this instrument.
(Signed) A. W. Tims.
A. W. Tims.
“Signed and sealed in the presence of us.
Samuel Wright,
Cornelius Tims.”

The record also discloses that the said A. W. Tims, on the said September 14, 1907, requested his son, Cornelius Y. Tims, to call Samuel Wright to the house of the said decedent, as said decedent desired to see him. The son did so, and then returned to his work upon decedent’s farm, and while so at work on said day said Wright called at the house of decedent and conferred with him in his bedroom; that at the request of decedent said Wright, who was a justice of the peace (and who has since deceased), wrote said paper writing, and after it was written the son was again called ’from the farm into the room of the decedent, where said Wright and the decedent were, and where he says he saw his father sign his name to said paper writing, and after so signing it he asked for his glasses, and asked said Wright to sign his (decedent’s) name for him, which he did. Said Wright and said Cornelius Y. Tims signed said paper writing as witnesses. Some time after said paper writing was so signed, and while in said bedroom, the said Cornelius Y. Tims says that his father told him that he had designated him as executor in said paper writing. This, in substance, is the testimony with respect to the paper writing in question, as shown by the record.

R. S. 5914 (Gen. Code 10503), provides who may make a -will and E. S. 5916 (Gen. Code 10505) provides how a will maybe made; said latter section provides as follows:

“Every last will and testament (except muncupative wills hereinafter provided for) shall be in writing, and may be handwritten or typewritten, and such will shall be signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party, by two or more witnesses, who saw the testator subscribe, or heard him acknowledge the same.”

In an action authorized by E. S. 5858 (Gen. Code 12079), to contest the validity of a will, the issue to be made up and tried is prescribed by E. S. 5861 (Gen. Code 12082), and is whether the writing produced is the last will, or codicil, of the testator, or not. In the case at bar the testamentary -capacity or the intention of the testator were not in issue, but it is urged by the plaintiff in error that it was not executed according to law. It is contended that the law requires certain formalities to be observed in the execution of a will, and that these formalities must be complied with before it can be said to be clothed with the characteristics of a will; that under the laws of this state the manner of the execution of a will is governed solely by statute, which must be followed, and which cannot be changed or departed from if the instrument is to be regarded as a will under the law. Irwin v. Jacques, 71 Ohio St. 395, 409 [73 N. E. Rep. 683; 69 L. R. A. 422], It must be executed as required by the statute with reference to the signatures of the testator and attesting witnesses. When a will is to be proven, and the sanity of the testator, for instance, is put in issue, the law does not presume- that' the testator was sane at the time of signing the will, as in the case of other instruments, but his sanity is to be proved, and the subscribing witnesses are required to attest to the capacity of the testator, including his sanity. So, too, with any other claim that may be made with reference to the condition of the testator: The attesting witnesses, before the will can be admitted to probate, must make oath that he or she was of sound mind and memory, and not under any restraint at the time of the execution of the will.

Counsel for - defendants in error contend- that the provisions o'f said R. S. 5916 (Gen. Code 10505) were fully complied with in the execution of the said paper writing, and that the court was warranted, under the evidence submitted upon the trial, in directing the jury fo return a verdict upholding said paper writing as a will. True, the court is authorized to direct the jury to return a verdict sustaining a will when the evidence does not tend to prove the issue on 'the part of the contestants, but was such action on the part of the court, under the evidence, warranted in the case at bar? The son, who was one of the subscribing witnesses to the said paper writing, testified that his father had spoken of his intention to make a will some time before said paper writing was made on the day named, and that on said day his father told him, some time after he had witnessed the said paper writing, that he had been named as executor in his will; but it appears that when he signed said paper writing as one of the-witnesses thereto nothing was said or made known to him by anyone as to what paper he wah signing, nor did his father or said Wright make known to him why he was called from his work on the farm into the room where they were. Under this evidence, can it be said that said paper writing was executed according to law as a will?

As stated, R. S. 5916 (Gen. Code 10505) provides that every last will and testament * * * “shall be attested and subscribed in the presence of such party, by. two or more competent witnessed, who saw the testator subscribe, or heard him acknowledge the same. ’ ’ This statute has at various times been construed by our courts, and we are therefore not without authority or precedent. It appears that the decedent- was not entirely satisfied with his own signature.to the paper, and he thereupon requested - said Wright, the scrivener, to write decedent’s signature thereto, which he did, placing it immediately below that as made by the decedent. This was not open to objection, but is expressly authorized by statute. But was said paper writing attested and subscribed in the presence of the testator by .the witnesses who saw the testator .subscribe or heard him acknowledge the same, as contemplated by the statute referred to? In the case of Keyl v. Feuchter, 56 Ohio St. 424 [47 N. E. Rep. 140], the court say:

“One essential to the admission of the paper writing purporting to be a will to probate is that it shall have been acknowledged by the maker as his will, and his signature also acknowledged, and in the presence of two subscribing witnesses.”

And in Haynes v. Haynes, 33 Ohio St. 598, 612 [31 Am. Rep. 579], in discussing the requisites of a will, the judge announcing the opinion says:

“Subscription by the testator, * * * and the publication of the same, are independent facts, each of which is essential to the due execution of the instrument.”

And again on page 614, in the same opinion, it is said that * ‘ The testator must, in some way, acknowledge and publish the paper as his will.”

In a legal sense attestation and subscription, as applied to the execution of wills, have different meanings, and are clearly distinguishable. As laid down -by eminent text-writers, and interpreted by the courts, the distinction is made that to attest the publication of a paper as a last will, and to subscribe to that paper the name of the witness, are very different things:

“Attestation is the act of the senses; subscription is the act of the hand; the one is mental, and the other mechanical, and to attest' a will is to .know that it is published as such, and to certify the facts required to constitute an actual and legal publication; but to subscribe a paper published as a will is only to write upon the same paper the name of the witness for the sole purpose of identification. There may be a perfect attestation, in fact, without subscription.” Schouler, Wills (2 ed.) Sec. 330.

Hence it is that the fact that a paper writing when signed as a will must be made known to the witnesses attesting the will, and it would seem that there are good reasons why the courts should thus hold. The attesting witnesses by statute are required to make oath-as to the testator’s mental condition, and they are therefore entitled to be advised as to what they are signing. Unlike signing a deed or mortgage, or other written instrument, the solemnity of the act at once impresses them, and they instinctively canvass the mental condition of the testator, because of the responsibility that the incident imposes.

Applying these principles to the facts as disclosed in the record in this case, we are of the opinion that the evidence was lacking in meeting the requirements of the statute in respect to the execution of this alleged last will and testament of A. W. Tims, deceased, and that the action of the court in directing the jury to. return a verdict sustaining said alleged last will and testament, under the evidence, was erroneous.

It is further contended by- the plaintiff in error that the court erred in excluding the testimony of the witnesses, P. L. Wilkins and T. F. McKinney, offered by the contestants as to certain conversations had with the said Cornelius Y. Tims touching his knowledge that said paper writing was his father’s will, when he signed it as a witness, to which action of the court plaintiff in error objected and took exceptions. On page 13 of the record, said McKinney testified that he had a conversation with the said Cornelius Y. Tims, in the probate office of said Knox county, at the time said alleged last will and testament was admitted to probate, when he said to him that when he signed the same as a witness he did not know what it was; and that on the occasion of the hearing of the exceptions to the account of said Cornelius Y. Tims, as executor, said Wilkins testified that said Cornelius Y. Tims told him that he did not know what the paper writing was that he signed. This testimony, we think, was competent, and entitled to be considered by the jury as affecting the credibility of the witness, Cornelius Y. Tims; and in excluding the same from the jury, there was prejudicial error to the legal rights of the plaintiff in error.

For the foregoing reasons the judgment of the court of common pleas is reversed and said cause will be remanded to the said court of common pleas for further trial and proceedings according to law.

Powell and Voorhees, JJ., concur.


author: HURIN,-J.

text:
    ELECTIONS — INTOXICATING LIQUORS.
    [Putnam (3rd) Circuit Court,
    March Term, 1910.]
    Hurin, Donnelly and Kinder, JJ.
    K. L. Smith et al. v. Henry F. Rauh et al.
    1. Rule as to Admissibility of.Parol Proof on Inquiry into Election' Returns Applies to Local Option Election Contest.
    The rule by which errors in certifying election returns may be-inquired into by parol testimony, by analogy is applicable to-contests of local option elections notwithstanding the specific statute in this ease, Gen. Code 6117, 6118, providing for such-contest does not in terms so declare.
    2. Courts may, but Election Officers may not, Inquire into Pacts of' Election on Contest Thereof.
    The function of boards of election officers in declaring the results of. election is ministerial; that of courts in considering contests-of election is judicial and is clearly distinguished; hence, while a board of deputy supervisors is without power to hear evidence to contradict or explain tally sheets, the court has such power and may go back of the returns and inquire into the-facts.
    3. Certificates of Results of Local Option Election on Contest Thereof Held Superior to Record on Tally Sheets.
    Certificates and returns of election officers are prima facie evidence of the facts certified, but neither tally sheets nor certificates are conclusive. Hence, while election officers cannot be permitted by parol evidence to impeach their own official acts, yet where the same officers have signed two contradictory returns, one of which must be wrong, they should be permitted or required to explain the discrepancy.
    Error to common pleas court.

      E. R. Eastman, Malone <& Griffith, Z>. N. Powell, J. S'. Ogan, Wayne B. Wheeler and B. A. Unverferth, for plaintiffs in error.

      Straman & Straman, Watts & Moore, 3. Newbegin and R~ Newbegin, for defendants in error;
   HURIN,-J.

This action was brought originally in the probate court to contest a local option election in Putnam county, which county, on the face of the returns, was declared to have voted “dry” om October 13, 1908.

Soon after filing the petition to contest the election a motion was also filed by the contestors asking the probate judge to certify the case over to the court of common pleas on the ground that he was prejudiced against the side of the contestors as shown by his activity in the campaign preceding the election. The motion being overruled by the probate court, an action in mandamus was commenced in the circuit court seeking to compel the probate judge to so certify the case.

A majority of this court, believing that such an action would lie, granted such writ, and while exceptions were taken to this action and a proceeding in error was prosecuted to the Supreme Court, which resulted in that court’s denial of the right to compel, by mandamus, a probate court to certify to the common pleas court a case in which it claimed jurisdiction, yet while such proceedings were pending in the Supreme Court, the probate judge obeyed the mandate of this court, and having done so, it was held by the Supreme Court, no opinion, Heidlebaugh v. Recker, 81 Ohio St. 514, that he had waived the right to rely upon his right of jurisdiction, and the Supreme Court therefore refused to take, further action in the case.

In the meantime the case had been tried on its merits in the •court of common pleas. That court found on the evidence that the results of the election in the south precinct of the village of Ottawa had been erroneously certified to the board of elections and that the vote had been improperly tabulated by the clerks of election; in this respect, that the number of voters voting for the prohibition of the sale of intoxicating liquors had been recorded on the line designated for those voting against such prohibition and that those voting against such prohibition had been recorded on the line designated for those voting for such prohibition, so that, in that precinct, the vote which had been recorded as 119 against prohibition, or “wet,” and 196 for prohibition, or “dry,” as it is commonly •called, should have been recorded as 196 “wet”’ and 119 “dry” •and that, as a consequence of that error, the vote of the whole •county was changed, and instead of there being a majority of 21 votes in the county for the prohibition of the sale of intoxieating liquors, there was, in reality, a majority of 133 votes against such prohibition.

In a very able, learned and painstaking opinion the judge of the court of common pleas found that such was the actual result of such vote as shown by the evidence and that a tri^l court on the trial of a contest of an election could and should go behind the first returns and, having found the results of the election to have been improperly recorded, should set aside suck return and cause a correct return to be recorded.

From this decision error is prosecuted to this court.

It is evident that there are but two important questions its this case and that we must first inquire whether, on a contest of an election, the trial court had the power to go behind 'the face of the returns and inquire into the facts, and, second, if we find that the court had such power, we must inquire whethei” the evidence in this ease justified the conclusion reached by the trial court.

The law (99 O. L. 35; Gen. Code 6108 et seq.) providing fora county local option election also provides for a contest of suck election.

By Sec. 9 of act 99 O. L. 38, the so-called Bose law, it is-provided that any qualified voter of the county * * * may-contest the validity of such election by filing a petition in the probate court within ten days after the election, setting forth, the grounds of contest.

Gen. Code 6118 further provides thaf “the probate court shall have final jurisdiction to hear and determine the merits of the proceedings, and in other respects, in the procedure of the: ease, shall be governed by the law providing for contesting the; election of a justice of the peace so far as such law is applicable. ’ ~

By referring to the law applicable to the contesting of an election of a justice of the peace we find that, among other-things, it provides, Gen. Code 5162, for a notification of the probate judge by the contestor specifying the points on whick the contest shall be based.

It provides further, Gen. Code 5163, for the summoning witnesses.

■ It provides, further, Gen. Code 5166, that no election shall be set aside because illegal votes were cast at the election, if it appears that the person whose election is contested has the greatest number of legal votes given at such election.

These provisions point to contests on various grounds which, as is also required by the Bose law, shall be specified in the notification of contest, and they also specifically refer to illegal votes as a ground of contest — a question not raised in this case.

Some light may be obtained by way of analogy from other similar statutes relating to other contests of election.

Gen. Code 5152, which relates to the contest of an election mf a county officer provides that ‘ ‘ On the trial, either party may introduce oral testimony or depositions of witnesses taken as provided in civil actions. When any omission, defect or error occurs in the proceedings of an officer in declaring or certifying that a person was duly elected to-an office, it may be corrected by oral or other testimony, offered at the hearing of any preliminary proceeding or at the trial, ’ ’ while Gen. Code 5148-5151 give specific authority for the taking of testimony and the compelling of the production of books, papers, etc.

And Gen. Code 5157, 5158, which relate to the contesting of the validity of a vote on the removal of a county seat provides for a commissioner to take testimony in writing as to the validity of the votes cast at such election upon such question and as to the validity of the result thereof.

Provision is made for a review of the commissioner’s report by the judge of the court of common pleas and by Gen. Code 5160, it is provided that “If, upon the hearing, the court or judge finds that illegal votes were cast at the election upon such question by reason whereof or for any other reason found by the court or judge, the result of the election or vote so returned :a.nd certified is contrary to what it would have been but for such illegal votes or other reason, the court or judge shall enter and certify such findings on the records of the court.”

By these last three sections it appears that in other contests «of elections the legislature has clearly provided for going behind the face of the returns in order to arrive at an understanding of the facts.

The section last cited provides for setting aside the result of an election either because illegal votes were cast or for any other reason; and Gen. Code 5152 provides that “any omission, defect or error occurs in the proceedings of an officer in declaring or certifying that a person was duly elected to an office, it may be corrected by oral or other testimony, offered at the hearing of any preliminary proceeding or at the trial.”

It thus clearly appears that, in similar contests, errors in certifying returns may be inquired into by oral testimony.

By analogy, then, the same rule would seem to apply to contests of local option elections, although the specific statute providing for such contest does not in terms so declare.

The constitution of the state, Art. 2, Sec. 21, has provided that ‘ ‘ the general assembly shall determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted. ’ ’

This the general assembly has done in the statutes previously quoted. '

It is apparent at once that there is a sharp distinction between the powers and duties of the board of deputy supervisors of elections in declaring the results of the election and the powers and duties of a court in considering a contest of election. The board of deputy supervisors has ministerial powers only. The court has judicial powers. The board of deputy supervisors is without authority to hear evidence to contradict or explain the tally sheets: while a court, on a contest of the election, is clothed with such authority. See State v. Tanzey, 49 Ohio St. 656 [32 N. E. Rep. 750], and this distinction is clearly recognized by Gen. Code 5110 which specifically provides that “in making the abstracts of votes, the board shall not decide on the validity of the returns, but it shall be governed by the number of votes stated in the returns.”

The Supreme Court of Ohio in the famous case of Dalton v. State, 43 Ohio St. 652 [3 N. E. Rep. 685], a case where there seemed to be no doubt that the most infamous frauds had been practiced in Cincinnati, held that the duties of canvassers of election returns under R. S. 2981 now Gen. Code 5110, were ministerial merely and that they had no power to decide such returns invalid by reason of fraud at the election or in the returns thereof as made to the clerk, and that the court could not by mandamus compel such canvassers to omit certain votes from the abstracts and that the court could not in the mandamus proceeding, decide on the validity of such returns but that the remedy in such case was by contest as provided by law.

The statute there under consideration expressly forbade the canvassers to decide on the validity of the returns and the court held that in a mandamus proceeding it could not compel the canvassers to perform a judicial duty when the law made them ministerial officers only.

In a later case growing out of the same election, Dalton, Ex parte, 44 Ohio St. 142, 156 [5 N. E. Rep. 136; 58 Am. St. Rep. 800], the court again emphasized the fact that in a contest of election the facts could be thoroughly inquired into, and, referring to the contest then in progress before the house of representatives over the election of some of its members, the court repeats this strong assertion:

“In a contest in either house the broadest range is given contestants to purge the ballot and returns of the consequences of neglect, mistake, fraud, and crime, from the opening of the polls to the final declaration of the result.”

And in the contested election case of Howard v. Shields, 16 Ohio St. 184, Judge Welch in the opinion, page 189, says:

“The policy of the law seems to be, that until the contrary is: shown, the tally sheet shall be taken and considered as a true' statement of the number of legal votes cast for each candidate. Of course, it is open to be impeached by the other party. ’ ’

And further on in the same opinion the court said:

“The question is, can the court, in trying a contested election, go behind the poll books and tally sheets, to supply and correct mere omissions and mistakes in them, by parol evidence ? We have no hesitation, either upon principle or authority, in answering the question in the affirmative. * * * We apprehend the true rule to be that both the abstract and the poll boobs and tally sheets when' substantially correct upon their face, are prima facie sufficient, but may be impeached -by evidence aliunde, showing their falsity or sufficiency; and that when not so substantially correct upon their face, they may be sustained in the same way. To hold that, when an election has been in fact held, and the majority of the legal voters have in fact, and according to the prescribed forms of law, cast their ballots for the candidates of their choice, the constitutional rights of the voters and of their candidates can be defeated by a mere misprision or omission of the judges or clerks, would be manifestly unjust and contrary to the plain intent and spirit of our election laws.”

And in the case of Ingerson v. Berry, 14 Ohio St. 315, the Supreme Court, per Scott, J., declares that the court of common pleas is “clothed with full * * * power to judge of the validity of the returns as shown by the poll books, and to go behind them and inquire into the legality of every vote which they exhibit.”

The case of Phelps v. Schroder, 26 Ohio St. 549, is to the same effect.

There would seem, then, to be no room for doubt that the statutes of Ohio, relating to contests of election generally, passed in pursuance of the authority vested in the general assembly by the constitution of Ohio, and as interpreted by our Supreme Court, do give to courts, in contested election cases, the power to go behind the face of the returns and inquire into any neglect, mistake, fraud, or crime, which has interfered with the true expression of the will of the people and that, in such inquiry, oral testimony may be received to support either side of the contest.

But in the case at bar the contestors rely in part upon the testimony of the judges and clerks of the election in the south precinct of the village of Ottawa to prove that their own certificate as to the results of the election was erroneous — and that therefore the result of the election was the reverse of what they had officially certified it to be.

In other words, these contestors seek to have these judges and clerks of elections impeach their own certificates by their oral testimony. Can this be done ?

We' have little hesitancy in saying that, as a general rule and as applied to officers generally, this cannot be done. The authorities are overwhelmingly against their power to do so.

In the early case of Hill v. Kling, 4 Ohio 136, the court held that “the sheriff cannot be permitted, either in pleading or by evidence, to falsify his return,” citing Gardner v. Hosmer, 6 Mass. 325, and Purrington v. Loring, 7 Mass. 388.

The case of State v. Moffitt, 5 Ohio 358, while not strietly analogous, decided that the record of an election by the legislature where it was claimed that by mistake the record showed that Samuel Moffitt had been elected judge whereas it was in fact Lemuel Moffitt who was elected, could not be corrected by parol, because members of the legislature could not be heard to prove that the action of that legislature had really been, as against the actual record of that action.

The case of Sinks v. Reese, 19 Ohio St. 306, was a contested election ease wherein the tally sheet, poll book and ballots might have been offered in evidence but were not so offered, and oral evidence was offered to prove that an error was made in the count.

The court held that this could not be done because of the rule requiring the best evidence to be produced vffiere it is possible to produce it.

The case of Taylor v. Wallace, 31 Ohio St. 151, was a case involving the election of state and county officers.

The court held that the declaration of the clerk and justices showing who were duly elected ought to be certified in writing and the certificate ought also to show the day on which the declaration was made in order to fix the time for taking an appeal.

The court then held that “if, taking the certificate in connection with the returns and the abstract, there is no ambiguity or uncertainty as to the date of the declaration, parol evidence, in-the absence of fraud, is inadmissible for the purpose of fixing the time for taking an appeal.”

In a ease decided! by the court of appeals of Kentucky it was held that:

“An officer of election will not be permitted to contradict his solemn certificate to the returns signed by him at the close of the election by parol testimony in an election contest.’’ Browning v. Lovett, 29 Ky. L. 692. [94 S. W. Rep. 661].

But the court in that case cites an earlier Kentucky case where the parol evidence of such an election officer was admitted to explain how an error in the additions had been made on the poll books which were in evidence.

In a few eases, such as Hamilton v. Young, 26 Ky. L. 447 [81 S. W. Rep. 682], we find that the courts of other states have permitted officers of elections to testify orally as to the circumstances attending the préparations of their certificates — so that it appears that this exaction question has arisen in very few cases and the courts are not at all uniform in holding for or against the admissibility of the parol testimony of an officer of election, impeaching his own certificate. The rulings appear to be governed more by the circumstances of each case than by any clearly defined principle of law; and in most of the cases where such parol evidence was admitted, it appears to have been admitted to explain discrepancies in the certificates and returns or to explain errors alleged to exist in them, their admission being based on claims of fraud or mistake.

With the question thus undecided by the courts of our state and with no definite rule to be derived from the adjudicated cases in the courts of other states, we must resort to the general principles of law in the decision of this case.

It may be said to be well established that the certificates and returns of election officers are prima facie evidence of the fact certified to.

Cooley, Const. Lim. p. 940; Ewing v. Thompson, 43 Pa. St. 372; Hartman v. Young, 17 Ore. 150 [20 Pac. Rep. 17; 2 L. R. A. 596; 11 Am. St. Rep. 787]; 2 Elliott, Evidence Sec. 1294, and many other authorities so declare.

This is equally true of the tally sheets. Howard v. Shields, 16 Ohio St. 184, 189; State v. Donnewirth, 21 Ohio St. 216.

In the ease at bar the tally sheets, certified to by the officers of election, show one state of facts — the five other certificates of the same officers of election show exactly the contrary state of facts. Both are, as we have seen, prima facie evidence of the facts therein recited.

But neither the tally sheets nor the certificates are conclusive. Both are signed and certified as correct by exactly the same officers. If either is correct, the other must be wrong. It is of the greatest importance that the question as to which is more probably right shall be settled. In this dilemma the court must look to whatever evidence is available to aid it in its determination.

"Where the same men have .signed two contradictory certificates, one of which must be wrong, sound sense would seem to demand that they should be permitted and required to explain the discrepancy. This court is interested not so much in what the certificates say as in what the people actually did at the polls.

Courts of laws and courts of equity both are compelled to allow a wide latitude where questions of mistake or fraud are involved and there is a large class of cases which hold that in cases of fraud and mistake a certificate, otherwise binding, may be contradicted by parol, and even by the oral testimony of the person making the certificate, where such certificate appears to be clearly a mistake or fraudulent. See Elliott, Evidence Sec. 594; Young v. Duvall, 109 U. S. 573 [3 Sup. Ct. Rep. 414; 27 L. Ed. 573].

In view of these principles we have read and-reread, with the greatest care, the evidence offered in this case — looking first to-evidence other than that of the election officers and finally to that, of the officers themselves.

"What actually took place at the voting place of the south precinct of Ottawa, on October 13] 1908, can only be known to-eight persons — four .judges, two clerks and two inspectors.

The judges and clerks all signed two absolutely con.tradictory sets of certificates, two of them attached to the tally sheets, and five of them purporting to state the facts disclosed by those tally sheets. The tally sheets themselves are, of course, the best evidence, for they are the record of the votes as originally called off, and noted before the final result could possibly be known. They were kept by the clerks, and both show that 196 votes were east for the prohibition of the sale of intoxicating liquor's and 119 votes were cast against such prohibition. Immediately after these were signed five other certificates were filled out and distributed as provided by law, though it appears that these had been somewhat irregularly signed before being filled out. These five other certificates all agree in stating the result as exactly contrary to the tally sheets.

Of the eight witnesses to the events of that evening only two — the inspectors — did not sign the certificates. Of these two men A. M. Brown represented the dry side and Andrew Brink-man represented the wet.

Mr. Brinkman testifies that he was present at the counting of the votes, watched the count, saw the record made and knows that the ballots were then burned; that, after the count, the number of votes was called off and that 196 votes were called off as “wet”; that a certificate of the result was made out after the count was over and given to him, as inspector — being certificate known as exhibit “I” and that it showed then, as it does now, that there were 196 wet votes and 119 dry votes. He says, that in counting the votes, there were first 7 bunches of 5. wet votes each before there were any drys; that they put the wet votes in the dry column, and afterwards put the dry votes on the line below.

Mr. A. M. Brown testified that he was an inspector for the dry side, was present during all the time of the court, but did not see how the votes were being tallied by the clerks and did not .see any inspection, either by any of the judges or by the other inspector of the tally sheets as they were made by the clerks, and that he made none himself; that all in the room were busy with the particular work assigned to each. He says that he, too, received a certificate being exhibit “ J, ” which exhibit is in exactly the same form as the other four certificates in evidence; that is, it .shows 196 “wet” votes and 119 “dry” votes. Strange to say, neither the attorneys for the contestors nor for the contestees: asked Mr. Brown whether, as a fact, the wet votes were recorded on the dry line and the dry votes on the wet line, nor did they ask him whether he knew on the evening of October 13 that there was a difference between the two kinds of certificates.

Later on Mr. Brown was again called as a witness and testifies that on the morning of the election one of the judges was absent and his place was filled by election and that Mr. Bennett received all the votes for that office, but one, which was cast by Mr. Brown himself. An attempt was made, and we think was improperly prevented by the court to show that the complexion of the board and that of the crowd that elected Mr. Bennett was plainly “wet.” That the crowd was composed in part at least of saloon keepers and bartenders and that Mr. Brown was the only “dry” man present. But whether this was improperly excluded or not'is now immaterial. Of all those present at the counting of the ballots on the night of the election, Mr. Brown was the one most interested in seeing that the vote of the ‘ ‘ drys, ’ * if in fact the larger, was properly recorded. He is unable to tell anything about the way the record was made, or whether the votes were recorded on the proper lines of the tally sheet or on the wrong lines. He, like the other inspector, received a certificate showing that the “wet” side had received 196 votes to 119 for the “dry.” His attention was thus immediately challenged to the announced result. He made no protest, made no claim that this was an error and appears to have been perfectly satisfied with this statement of the result. If it was wrong, it was his plain duty to see that it was at once corrected. That is what he was there for. His silence carries with it an almost overwhelming, presumption that the result was correctly announced, that he understood it, and that he was satisfied with that announcement.

As to what the tally books actually showed he appears to have been absolutely ignorant. He was not asked by either side to state from his own knowledge what the vote actually was. He had not watched the tally made by the clerks, being engaged in watching the ballots as they were called off, and he was not asked to testify as to whether the statement of his fellow inspector was true, that is, that the wet votes were first recorded on the line .reserved for the dry. If there were no other evidence than the testimony of these two inspectors, neither of whom could possibly be held to be an incompetent witness, for neither of them had signed the certificates or poll books, the court of common pleas would probably have been justified in deciding as it did. But if we give any credence at all to the testimony of the judges and clerks, the proof is overwhelming that the five certificates were right and that the tallies were erroneously recorded on the tally sheets. Every one of these six officers testifies. While there are some discrepancies in the details of their testimony, they substantially agree on all of the important facts. Four of these six officers swear that the first 35 votes counted, which were apparently the first votes-east, were “wet” votes — thus agreeing with the testimony which was sought to be brought out on the other side, and was excluded to the effect that all of those who organized the polls in the morning were “wet” sympathizers. The other two officers were not asked this question. Four of these six officers testify, the others not being asked the question, that these first 35 wet votes were recorded on the first line of the tally sheet where the dry votes should have been recorded, and that from that time on, all the wet votes were recorded on that line and that the totals were always about the same number ahead of the total dry votes.

All but one of these six judges and clerks, the other not being asked the question, swear that at the conclusion of the count, public announcement was made at the door of the voting place and that in this announcement the vote was publicly declared to be 196 wet and 119 dry. Five of these, six'witnesses,- the other not being asked as to this, declare that a certificate stating this as the result was immediately tacked on the outside of the door of the voting place and that certificate is identified and attached to the bill of exceptions as exhibit “F,” and it like all the other certificates (except those on the tally.sheets), shows 196 wet votes and 119 dry votes. All of these officers of election testify that in fact there were 196 wet votes cast and- only 119 dry votes.

The testimony of these six officials is thus overwhelmingly in support of that of Mr. Brinkman, the wet supervisor, to the effect- that the wet vote was actually recorded on the line intended for the dry vote, and that the dry vote was recorded on the line intended for the wet vote. It further substantiates the statement which neither Mr. Brown, nor any other witness, denies, that the result of the vote was understood by all present to be and was certified to be and was publicly announced to be 196 wet and 119 dry, and that Mr. Brown, as well as all others entitled to them, were that night given certificates showing this result; and that no protest was made and no one questioned the truth of this certificate. The clearest explanation of the whole matter is given by Mr. Crawfis, one of the clerks. He testifies as follows,, pages 88 and 89, and I quote his testimony on this point in full. He says:

‘ ‘ In the early part- of the day I looked over the tally book as usual, investigating the form of it, read what was in it and paid po more attention to the printing on the left hand side. When the votes were counted out there was no one called fortihe two clerks; we were instructed not to tally any votes till called off by a certain judge who was to call them off in batches of five at a time; and there was 7 batches of wet votes called off before there was a.batch of dry votes; for some reason I know not what ,it is, any more than we can explain any other-error that we make day by day, I started in on the top line putting the first ones down there and of course continued to do that until I had 7 batches of fives; that thoroughly fixed in my mind which I was going to use for the wets without referring whatever to the printing on the left; and then after the 7 batches had been called off, one batch of drys, making 35 at the top and five, at the bottom; from that time on till after the top line had gone above 100 there remained just 30 between the two; the other clerk and myself remarked several times during the tally the peculiar coincidence of the remaining just 5 apart after this 35 wet vote and the 5 dry and then there was 5 wet votes and then 5.drys and I went from the top to the bottom and the top- to the bottom without any reference whatever to the printing on the left. ’ ’

The other clerk, Roy Deck, merely says that he tallied the wet votes on the upper line and the dry votes on the lower line. Mr. Crawfis says that they called off their totals to each other and they agreed. This explanation is a simple one, and not unnatural. It is easy to believe that such a mistake could have occurred.

The hard thing to understand is how it could possibly remain undiscovered that eight presumably intelligent men could stand by all evening and see such a mistake carried out, and then in addition, see those figures erroneously copied into the statement at the bottom of each tally sheet — that six of these men could deliberately sign those erroneous statements which were directly contrary to their understanding of the facts, seems almost incredible. Yet they all say that they did it and Mr. Brown, who was certainly interested in proclaiming the truth, 'if these two statements were true, accepted in silence a certificate directly contradicting them in the vefy vital matter of the whole day’s work, heard that new certificate, which is now called false, proclaimed in public as the truth, and saw it tacked to the door to further proclaim that truth, and all without a word of protest. Apparently all of these men relied entirely on the accuracy of the two clerks, and must now ask us to believe that they signed the clerk’s report without reading it. If. the clerks and judges were careless, the inspectors Avere almost equally careless.

If the clerks and judges were deliberately falsifying the returns, as we are asked by the other side to believe, then they at least gave due notice of their design'to,the very man who was there to prevent such trickery, and he took no action to prevent it. We are loath to believe that these men would deliberately perpetrate such a fraud against the public, or that they Avould presume to carry out such a fraud by perjury on the Avitness stand. But whether avc could believe it or not the evidence does not prove it. That they were grossly careless — astonishingly careless — is the only other alternative. The evidence, if believable to all, admits of no other conclusion. It is clear, explicit and without any contradiction. Such carelessness is more than unfortunate. It has been expensive, not only in money but in the reputations of all who participated in the transaction. It has kept the whole community in turmoil and has aroused suspicion and bitterness among citizens who ought to be on terms of cordial friendship. Such things are not good for a community. It is to be hoped that this unfortunate strife will now cease and that what cannot be cured will be forgotten.

The judgment of the court of common pleas will be affirmed.

Donnelly and Kinder,' JJ., concur.


author: GIFFEN, P. J.

text:
    DAMAGES — TRESPASS.
    [Hamilton (1st) Circuit Court,
    March, 1911.]
    Giffen, Smith and Swing, JJ.
    William Cordes v. Charles Mason.
    Use op Firearms to Expel Trespassers not Justified ip Owner does not Reasonably Anticipate Bodily Injury.
    A mere trespass on real estate does not justify an owner’s use of firearms to drive trespassers from the premises, if he has no reason to fear that the trespassers would do him great bodily harm.
    Error to common pleas court.
    The plaintiff below was given a verdict of $900 on account of injuries sustained.

      Burch & Johnson, for plaintiff in error.

      Geo. 8. Hawke, for defendant in error.
   GIFFEN, P. J.

Charles Mason and two companions were trespassers ’while fishing in a pond on the premises of William Cordes. The latter being advised of their presence at about 3:30 o ’clock in the morning, secured a loaded shotgun and proceeded toward the pond. On the way he met his servant, who informed him that three colored men were fishing in the pond; that he told them to leave the premises, and that they refused. When he arrived at a point about 200 feet distant from tbe men on tbe other side of the pond, without any warning he fired the gun in that direction, and within two minutes thereafter, seeing the plaintiff stooping as though intending to pick up something, he fired directly at the plaintiff, one of the shots penetrating and causing the loss of one eye.

lie justifies the shooting on the ground that he believed and. had reasonable ground for believing that plaintiff was stooping' to pick up a gun or other deadly weapon and intended to do him bodily harm. lie dpes not claim that his servant or he himself saw them do anything that would justify the first shot, except fishing on his premises without permission.

He certainly can not excuse the unlawful use of firearms: by a mere trespass on his real estate by the plaintiff; but on the contrary the plaintiff himself, although a trespasser, would be justified in resisting the assault with force, if he believed that he could not escape from the premises without suffering great, bodily harm, and had reasonable grounds for such belief.

The jury, however, must have found from the defendants own statement of the affair that he had no reasonable ground for believing that the plaintiff would do him bodily harm.

In this view of the ease we deem it unnecessary to consider the objections to the general charge of the court to the jury.,, which as a whole fairly states the law of the case, although certain parts considered above would be misleading.

■We are not unmindful of the great provocation to use force,, when one’s premises are invaded by three unknown men at suele an unreasonable' hour; but we are satisfied from the testimonj;of the defendant that a request or demand that they leave the-premises, wdien made with a shotgun in reserve, was the only necessary and reasonable course to pursue, and would no doubt have been obeyed.

Finding no prejudicial error in the record the judgment will be affirmed.

Smith and Swing, JJ., concur.


author: TAGGART, J.

text:
    CARRIERS — LIMITATION O# ACTIONS.
    [Richland (5th) Circuit Court,
    January 25, 1911.]
    Taggart, Powell and Voorhees, JJ.
    Pat Gatton v. United States Express Co.
    Limitation os’ Carrier’s Liability to Six Months Bars Action Subsequently Brought.
    A shipper hy express, who signs a contract which limits the liability of the company to six months in so far as the commencement of an action for damages is concerned, is barred from maintaining such an action begun more than six months after the shipment was made, notwithstanding his allegation that he signed the contract hurriedly, and without examining it, and supposing it was the bill of lading.
    .[Syllabus by the court.]
    Error to common pleas court.

      Farber & Voegele, for plaintiff in error.

      Cummings, McBride & Wolfe, for defendant in error.
   TAGGART, J.

This case had its origin in the court of common pleas. Plaintiff in error was plaintiff therein and defendant in error was defendant therein. By his amended petition the plaintiff sought to recover, as he alleged, for a breach of a verbal agreement entered into between himself on the one part and the agent of the defendant company on the other part, for the transportation of thirty-eight horses-and mules, in first-class condition, from Bellville, Ohio, to Pittsburg, Pa., upon an agreed price. He avers that the defendant company violated its agreement to his injury in the sum of $630 which he sought to. recover in his first cause of action. He avers substantially the same facts in respect to his second cause of action, and seeks to recover back the money that he was compelled to pay in his compliance with said contract, and which he was not entitled to pay in consequence of the failure of the company to perform its part of the agreement.

To the causes of action thus grounded in the petition, the defendant filed an answer admitting that it was an association organized under the laws of -New York, admitting that it received certain horses and mules to be transported from Bellville, in the state of Ohio, to Pittsburg, in the state of Pennsylvania, and denying the remaining allegations in the amended petition. For its further defense to the claim of the plaintiff, it avers that the horses and mules were delivered to it under and by virtue of the terms of a written contract that was signed by the plaintiff and defendant, which contract contains certain provisions and stipulations set out in the answer, which purport to limit the liability of the defendant company, and limit the plaintiff in the commencement and prosecution of the suit after the expiration of six months. It is then averred in the answer that six months had elapsed before the filing of the suit by the plaintiff herein, and specifies the date of the contract and the date of the filing of the suit.

It is necessary to look somewhat closely to the reply and to the amendment to the reply that was filed by the plaintiff to this answer. In the reply that was filed on February 10, 1909, the plaintiff, in the early part of his reply, denies that the horses and mules were- delivered to the defendant under and by virtue of a written contract, denies that there was any contract, written or otherwise, entered into by plaintiff and defendant, containing the provisions set forth in defendant’s answer, and plaintiff then sets out that the stock was shipped on February 24, 1906, and admits that suit was not entered until December 15, 1906, and then seeks to excuse the delay in bringing the suit in consequence of defendant’s representations that his (the plaintiff’s) claim would be paid without suit, and such representations were continued up until near the expiration' of said time, and these representations led to the delay in bringing the suit.

On motion filed by the defendant all the portion of the reply except such as constitutes the denial was stricken out by the court. Thereupon plaintiff filed an amendment to the reply, which was the issue tendered in the case. In the amendment to the reply, he admitted that after said horses and mules had been delivered by plaintiff to the defendant and the same had been loaded on board of the express car of the defendant and accepted for shipment, the defendant by its duly authorized agent at Bellville presented to plaintiff a certain paper writing and requested the plaintiff to sign the same, representing that said paper writing was a bill of lading or receipt for his said horses and mules, which representations were false and known to be false, and no opportunity was given plaintiff to read the same or familiarize himself with the same; that the paper writing was not in fact what it was represented to be, and was in truth and in fact a contract with exemptions from liability and limitations in bringing the suit; that the plaintiff relied on the false representations and was thereby induced to sign the paper writing.

On the issues thus made up, the case proceeded to trial and, at the close of plaintiff’s testimony, the court was asked by the defendant to direct a verdict for the defendant, which was overruled by the court; and at the close of all the evidence, the defendant renewed the motion to take the case from the jury and direct a verdict for the defendant. Thereupon the court instructed the jury to return a verdict for the defendant, which was accordingly done. A motion for new trial was filed and overruled and judgment rendered on the verdict.

It is contended by plaintiff in error that there were issues in this ease that should have been submitted to the jury, and that the court was in error in directing a verdict for the defendant.

In the ease of Perry v. O’Neill Co. 78 Ohio St. 200 [85 N. E. Rep. 41], the court use the following language in the syllabus of the case:

“A release of a cause of action for damages for personal injuries, that is void, is not a bar to such an action, and the •plaintiff may, if it is set up by answer as a bar to his right of action, by reply aver the facts that make it void;'but if it is not void but only voidable, he can not maintain his action until the release is set aside. ”

And the court in reviewing the authorities in this class of cases, quotes from the case of Cassilly v. Cassilly, 57 Ohio St. 582 [49 N. E. Rep. 795], where the court construes a written instrument signed by a mother and delivered to the son. The second syllabus is as follows:

“Where mother and son enter into a written contract, which is correctly read to her before its execution, and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfactorily established, that she could not read writing, and on account of the confidence reposed by her in her son, did not carefully weigh, so as to comprehend the terms of the instrument, when it was read to her, afford no ground to treat it as a nullity or to permit her to contradict its terms by parol evidence, when interposed by the son as a defense to an action at law brought by her against him. ’ ’

Here the court lays down the rule, as we have indicated, that where the contract is not void but merely voidable, it must be set aside before the party can maintain an action in contradiction of its terms, and the court in the case of Perry v. O’Neil, supra, at the close of the opinion on page 226, quotes with approval the following:

“A person who, without reading it, signs a-written contract releasing his right to maintain an action for damages resulting from injury occasioned by the negligence of his former employer would be held to have executed the instrument with full knowledge of its contents, when his only excuse for not reading it was that he was ‘somewhat hurried.’ Such a contract can not be avoided by the party signing it because he relies upon ‘allusions to future employment’ made by the agent of his former employer in the negotiations consummated by' the written release, which employment was not furnished him. ’ ’

So that the record , in this case, while it indicates that there was some haste, we think it comes far short of showing that there was any active fraud, or any fraud, whereby the plaintiff was induced to enter into this contract. The contract, therefore, being in full force and effect, was a complete bar, the stipulation of which was that unless suit was brought within six months, he would not be permitted to maintain his action. Contracts of this bind have received approval in the courts of this sta,te and other states and are not contrary to public policy.

So that upon the undisputed facts in this case, as shown by the admissions in the pleadings and the testimony in the case; we think the court was right in directing a verdict in this case, and the judgment of the court of common pleas is affirmed with costs and remanded for execution. Exceptions may be noted.

Powell and Voorhees, JJ., concur.


text:
    NEGLIGENCE — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    March, 1911.]
    Gifiien, Smith and Swing, JJ.
    Joseph Fritch v. Cincinnati Trac. Co.
    Liability foe Death of a Boy from Being Struck by a Car.
    In an action against a traction company on account of the death of a “boy eight years old from being struck by a ear, it is prejudicial error to fail to so modify the usual charge to the jury with reference to negligence as to hold the decedent to only that degree of care and prudence which may be expected from a child of his age, capacity and intelligence.
    Error to common pleas court.

      Gideon G. Wilson and Morstman <& Morstman, for plaintiff in error.

      Kinkead & Rogers, for defendant in error.
   SMITH, J.

The court is of the opinion that there was no error in overruling the motion of plaintiff in error for a new trial on the ground of newly-discovered evidence. The evidence at its best was cumulative, and under the rule laid down in Ludlow v. Park, 4 Ohio 5, 44, such evidence, while it might induce a different verdict with its introduction, it would not require a different one.

There, was no error in the submission of the special interrogatories, nor in the giving of the special instructions asked by defendant in error except special charge No. 2 with reference to plaintiff’s own evidence raising a suspicion that the decedent was negligent himself. We think under the circumstances of this case, the decedent being a child eight years of age, that the charge as given by the court is not qualified sufficiently to place before the jury the consideration of negligence upon his part from the standpoint of a boy of his age, capacity and intelligence. A child is held to such care and prudence only as would be expected from a child of his age and capacity. L. E. & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep. 640]; Citizens Elec. Ry. L. & P. Co. v. Bell, 26 O. C. C. 691 (5 N. S. 321).

We find no other errors in the record, but for the above reason the judgment of the trial court will be reversed, and a néw trial ‘granted.

Giffen and Swing, JJ., concur.


author: PER CURIAM.

text:
    ASSESSM ENTS — FENCES.
    [Tuscarawas (5th) Circuit Court,
    December 9, 1910.]
    Taggart, Donahue and Voorhees, JJ.
    Stephen Gatchell v. John L. West et al.
    Bids for Construction of Partition Fence not Enjoinable for Want of Notice of Sale, Notice to Adjoining Owner of Proceedings to Build Haying Been Given.
    Gen. Code 5910 to 5913 (R. S. 4242, 4243), relating to building of partition fences, contemplate a continual proceeding; hence, the notice required by Gen. Code 5910 is sufficient without giving any further notice, and injunction will not lie to prevent acceptance of bids for construction because no separate notice was given of sale to lowest' bidder.
    [Syllabus approved by the court.]
   PER CURIAM.

This is an action to enjoin the sale of the construction of a partition fence, by the trustees of Mill township, between the lands of Stephen Gatehell and William Elvin, and to restrain the certifying of the cost thereof to the auditor of this county against the lands of Stephen Gatehell.

The principal contention of counsel for plaintiff is that no notice was given under the application of the aggrieved party to sell to the lowest bidder the construction of the fence.

While’ it is undoubtedly true that notice must be given to every owner of land in every proceeding-seeking to charge his land or property with a special assessment, yet it is also the law that if a notice be given at any time in the “course of this proceeding the requirements of the constitution are satisfied.

Gen. Code 5910, 5913 (R. S. 4242, 4243) contemplate a continual proceeding with reference to the same subject-matter, and, therefore, the notice required in Gen. Code 4242 is sufficient for all purposes of the case. The proceedings under Gen. Code 4243 are based upon the orders made under the provisions of Gen. Code 4242, and after the orders made by authority of the last above named section have "been fully complied with that is the end of that whole proceeding, and nothing further can ever be done under the provisions of Gen. Code 4243. If after that time there is a failure to maintain or repair the fence the whole proceeding must be gone over again, starting with the application and notices provided in Gen. Code 4242. So that these proceedings are in nowise independent of the other, and the application provided for in Gen. Code 4243 is but another pleading in the same proceeding and no further notice is required. The petition of plaintiff must be dismissed with costs and cause remanded for execution. Motion for new trial will be overruled and exceptions noted; twenty days for separate finding of fact and law and statutory time for bill of exceptions.


text:
    NEGLIGENCE — RAILROADS.
    [Richland (5th) Circuit Court,
    January 25, 1911.]
    Taggart, Powell and' Voorhees, JJ.
    Elizabeth Schmidt v. Baltimore & Ohio Ry.
    Pedestrian, Killed at Railroad Crossing, Having Unobstructed View of Track for 1200 Feet, is Guilty of Negligence Precluding Recovery Notwithstanding Dangerous and Unlawful Speed of Train.
    An action does not lie against a railway company for the death of a pedestrian by being struck by a train at a crossing, where the decedent was in full possession of his sight and hearing and had an unobstructed view of the track for 1,200 or 1,500 feet, notwithstanding the train which struck him was (running at a high and dangerous rate of speed, and an ordinance was violated in so doing, and no signals were sounded, and there were obstructions along the track hut not in the line of view of the decedent.
    Error to common pleas court.

      Reed & Beach, for plaintiff in error.
    Cummings. McBride & Wolfe, for defendant in error.
   PER CURIAM.

The plaintiff in error, as administratrix of the estate of Matthias Schmidt, brought suit against the Baltimore & Ohio Bailroad Company in the court of common pleás of this county seeking to recover for the unlawful causing of the death of said decedent. She averred in her petition, as a ground of negligence, that the view from the crossing of North Main street in a northwesterly direction was obstructed by the tool house on the lands of defendant, by ties and railroad material piled thereon, by telegraph poles erected on said lands, and by cars -then standing on the side track, so that persons and the decedent, traveling along said street or highway, could not at the time of the alleged accident hear or see trains on the railroad ■approaching said crossing until such trains were at or near said crossing.

She further avers that the crossing gates, with an employe in charge thereof, were under the direction of the defendant, it having assumed the care and control over said crossing; that it had, up to that time, given notice to persons of the approach of its locomotive or cars, of which facts, the defendant assuming care and control and the giving of notice to persons approaching, the decedent had knowledge.

She then avers that Matthias Schmidt on the evening of January 25, 1907, at about 7 o’clock, was going north on said highway and reached the crossing in question, that the defendant carelessly and negligently managed and controlled one of its trains of cars so that it approached that crossing at a high rate of speed of more than fifty miles an hour, in violation of an ordinance of the city, without giving any notice or signal of the approach of said train, that it failed to give any signal of danger by blowing a whistle or ringing of bell, or taking any precaution whatever for the safety of passers over said crossing; and that, in consequence of said negligence, the decedent was struck and killed, without any fault on his part.

Issue is taken with the averments of this petition, by the company’s denying the averments of the petition, except its corporate capacity, the location of the highway, and that the decedent was struck by one of the defendant’s locomotives and killed, and it avers that a want of due care on the part of Matthias Schmidt contributed to his death.

A jury was impaneled and the ease submitted, and, at the close of all the evidence, the defendant, through its counsel,, moved the court to direct a verdict in its favor, which the court, did, and the jury returned a verdict for the defendant.

To the action of the court exceptions were taken, a motion for new trial filed, and this proceeding in error seeks now to reverse the judgment of the court of common pleas.

It is the contention of counsel for the plaintiff in error that the record discloses that there were certain obstructions upon the right of way of the defendant company, which prevented the deceased from seeing the approach of the train until within such proximity of the crossing that he could not escape injury in attempting to pass over the same while in the exercise of due care. The obstructions that are shown by thjf testimony are a tool house, signal post and certain lights known as switch lights, which have been described to us by counsel as-being “bull’s-eyes,” which caused a divergence of the lights to an extent which it is claimed would have obstructed a view of the train.

It appears from this record that the deceased, on the night in question, about the hour of 7 o’clock, was passing north on Main street over and across the lines of the Pennsylvania company, which runs in a southwesterly and northwesterly direction across this street. To the north of the Pennsylvania lines are the lines of the P>altimore & Ohio, consisting of a main line and siding. Accepting the view of the plaintiff’s testimony, the deceased was struck -while just going on the track of the main line of the Baltimore & Ohio, Railroad Company by a fast train approaching that crossing from the northwest.

It is contended by counsel for plaintiff in error that at or near the place where the deceased was struck the view of the main line of the Baltimore & Ohio would be obstructed by the tool house, signal post and switch lights, and that there were such facts developed in the. case that the cáse should have, been submitted to the jury.

From the entire record we are not convinced' that the switch lights or signal light were such obstructions that would interfere with a person looking to the northwest, and-, as we read this record, we think that a person just before going upon the tracks at this crossing would have a clear unobstructed view for quite a distance to the northwest, before stepping upon the track, and while being in a place of safety. Now, the distance which this track would be thus unobstructed we think fairly appears in this record to be upwards of perhaps 1,200 or 1,500 feet, and at a point where a man would see the tool house would be perhaps further than that; and that where the tool house would obscure the view there would be at least a very considerable distance where the track would be in plain view. So that, at a distance south from the track the deceased, as we construe this testimony, would have to travel some considerable distance with the track in plain view.

Now there is a total lack of evidence in this case that there was any confusion or noises there that would interfere with hearing the rumble of the train or the noise caused by its approach. The record shows that the deceased was in the possession of his senses, that he was not deficient in hearing and his sight was not defective. So that we have the case of a pedestrian attempting to cross the railroad track between daylight and darkness, with a train approaching, true at an unusual rate of speed, but with the headlights burning and the train lighted, as appears by the record throughout. So that, had he looked, he would have had better opportunity of seeing the lighted train at that hour of the evening than perhaps he would had it been earlier in the evening before the train was lighted. Had he listened, he undoubtedly could have heard it, as there is nothing to indicate here that there was anything to prevent him from bearing.

Now the rule of law is laid down in the case of Baltimore & Ohio Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 816], that a person in full possession of his senses of sight and hearing should exercise them to protect himself from danger when about to cross a known track of a steam railroad at a street crossing. The deceased in this case had crossed the Pennsylvania lines. It appears from this record that he was fully acquainted with the tracks and the surroundings, and that he knew, or must have known, that he was about to cross the tracks, of the Baltimore & Ohio Railroad. “What, then, was the duty that was incumbent upon him?

Assuming all the time, now, that the defendants were guilty of negligence in running their train at a high and dangerous rate of speed, that they were violating an ordinance, and that they failed to sound any signals of warning, what was the duty of the decedent? In the case of New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130], the Supreme Court lays down this rule:

“As between a person about to cross over a railroad at a crossing, and a train of ears approaching such crossing, the train has the right of way. This is so because the person can stop within a few feet, and the train cannot. The looking required before going upon a crossing should usually be just before going upon the track, or so near thereto as to enable the person to get across before a train within the range of his view of the track, going at the usual rate of speed of fast trains, would reach such crossing.”

Now, the record fails to show that the deceased either looked or listened just before going upon the track, and the presumption is that, if he had looked he would have seen, and having seen, he attempted to pass over before the train reached the crossing. It does appear that he was struck when just on the crossing or just about to step upon the track. As a pedestrian, the rec'ord shows that he could have seen at least past the tool house, a distance of several hundred feet. The light of the locomotive would be above the switch lights, it would be moving, whereas the switch lights are stationary, and had he looked, he must have seen this moving light and lights of the train, which would have been a warning to enable him to escape before going upon a place of danger.

True, a train passing at this rate of speed would pass over this intervening distance in but a few seconds, but the record seems to establish the fact that he was not yet on the track, and that but a second or two was all that was necessary to enable him to escape the danger.

So that we think that the testimony of the plaintiff in this ease and the/ whole record raises the clear presumption of negligence on his part which directly contributed to his injury, and that there was no testimony offered in the case or by the plaintiff tending to rebut that presumption. That being true, it was the duty of the court to sustain the motion and direct the jury to return a verdict. This is the rule laid down in Baltimore & Ohio Ry. v. McClellan, supra.

It is contended that there was error in the rejection of testimony sought to be introduced as to the facts that there were ears on the side track which tended to obstruct the view, which testimony was excluded by the trial court. It is of little consequence how much or how little testimony was excluded by the court or whether the testimony thus offered to be introduced had a tendency to establish the facts sought to be proved. If the view that we have taken of the case is sustained by the record, then no prejudice could have intervened, because, even if this testimony had been introduced, there was distance enough that was unobstructed which would have enabled the deceased to have escaped injury, had he observed the necessary caution that was-required of him in attempting to pass over this crossing.

So that, finding no error in this record to the prejudice of the plaintiff in error, the judgment of the court of common pleas is affirmed with costs and the cause remanded for execution.