author: Shauck, J.

text:
    The Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Lynch.

      Injuries sustained in effort to save life of another—Action to recover on account of—Conditions for recovery—Rescuer not to be reckless—Question of negligence of person sought to be rescued.

    In an action to recover on account of injuries sustained in an effort to save human life the conditions upon which there may be a recovery are: That the person whose rescue is attempted must be in a position of peril from the negligence of the defendant, and the rescue must not be attempted under such circumstances, or in such a -manner, as to constitute recklessness. Those conditions appearing, a recovery will not be prevented by the fact that negligence of the person whose rescue is attempted contributed to his peril, nor by the fact that the plaintiff is an . employe of the defendant.
    (No. 8267
    Decided October 27, 1903.)
    Error to the Circuit Court of Tuscarawas county.
    The railway company for purposes of operating its road maintains ten tracks over the grade crossing of Third street in Dennison, that street being the principal thoroughfare of the village, about one-third of its-population of 4,000 residing upon one side of the tracks, and two-thirds on the other. On the twenty-fifth of April, 1900, while Lynch was acting as the company’s only watchman at the crossing, one of the tracks being occupied by p, passing train, and he engaged in looking after the safety of a number of school children who were about to cross the tracks, a caboose was, without warning, kicked over the crossing on another track at the rate of about eight miles an hour without any one on its forward end to warn persons-of its approach. Lynch observed a woman apparently unconscious of the approach of the caboose on the track on which it was approaching, and as he believed in danger of being run down by it. He attempted to give her a warning signal with his flag, but she did not observe the warning; he then hastened to her rescue, pushed her from the track, but was himself caught by the caboose and seriously injured. He had been at the crossing about three weeks, his duty being to see that teams'and footmen crossed the tracks in safety. The degree of care which he exercised could only be inferred from the circumstance of the accident. There was evidence tending to show that the caboose was sent over the street in the manner stated, and that the woman rescued was not exercising due care. Lynch brought suit in the court of common pleas to recover for his injury, alleging negligence of the company in the manner of operating the caboose, and in other respects; such negligence being alleged to be the cause of his injury. The company denied that it was negligent and pleaded that if Lynch was injured, it was the result of his own carelessness. The material question presented for decision is raised by the following portion of the charge:

      “The plaintiff claims that he was struck by a car and injured while he was in the act of rescuing a woman from danger and saving her life. To hold the railroad company responsible in damages for this injury, it must be shown that the woman was in danger of being run over and injured by the approaching car, and that such danger was caused or created by the negligence of the railroad company, and that in making an effort to rescue the woman the plaintiff was not guilty of contributory negligence. These are questions of fact which it will be your duty to determine from the evidence.
    “If you find that the peril to which the woman was •exposed was caused by such negligence of the company, you will then inquire whether the plaintiff, Lynch, in passing on to the track and attempting to rescue the woman was guilty of contributory negligence.
    “The law will not impute negligence to an effort to preserve human life unless made under such circumstances as to constitute rashness in the judgment of prudent persons. If the plaintiff believed, and had good reason to believe, that he could save the life of the woman without serious injury to himself, the law will not impute to him blame for making the effort. The attending circumstances, as shown by the evidence, must be regarded; the alarm, the excitement and confusion, if you find any to have existed on said occasion, the uncertainty, if any, as to the proper move to be made; the promptness, if any, required, and what liability to mistake as to the best course to ■pursue. All these circumstances, as shown by • the evidence, may be considered by you in determining ■ whether, under the peculiar circumstances of this case, the plaintiff was in the exercise of ordinary care at the-time he received his injuries.”
    There was a verdict in favor of the plaintiff which was followed by a judgment, and that judgment was-affirmed by the circuit court.

      Messrs. Dunbar & Sweeney and Mr. T. D. Healea, for plaintiff in error.
    First. Lynch knew that no other watchman was-employed to assist him, that the company had been in the habit of kicking cabooses over the crossing without, any one on in front to give warning or control the: same from that position; that the caboose ¡which struck him had been kicked and was approaching on track No. 2, and he had knowledge of all the other-conditions surrounding said crossing, the amount and character of the travel over the same, the methods in use by the company in the operation of cars thereover- and the number of said cars.
    With this knowledge he not only assumed the ordinary risks and hazards incident, to his employment,, but, in addition, all the risks and hazards probably resulting from the methods then in use by the company in operating over said crossing, including the-number of watchmen employed thereat and the kicking of cabooses thereover, without any one being on in. front to give warning or control the same.
    If the duty to take care of and rescue the woman,, then in such peril as would probably result and resulting from the negligent methods of the company, known to him, was imposed upon him by virtue of his. employment, then he assumed the risks and hazards, incident to the rescue, and is not entitled to recover. Huda v. American Glucose Co., 154 N. Y., 474; 40 L. R. A., 411; Knisely v. Pratt, 148 N. Y., 372; 32 L. R. A., 367; 1 Shear. & Redf. on Neg. (5 ed.), p. 279,, sec. 186, p. 290.
    Second. No recovery can be had by Lynch against, the company in this case unless it was not only guilty of negligence as charged, but also unless such negligence was actionable.
    The undisputed facts show that the woman wasi guilty of contributory negligence; that her own negligent conduct would defeat a recovery in an action by her; hence the company’s negligence was not actionable in her favor.
    The negligent acts charged against the company were obviously known to Lynch; hence are not actionable in his favor; such acts under the facts were not in law negligence.
    Negligence of the person attempted to be rescued which is of such a character as would defeat a recovery in an action by him, defeats a recovery in an action by the rescuer unless there has been some particular act of negligence as to such rescuer. Watson on Dam. for Pers. Inj., sec. 107; Donahoe v. Railroad Co., 83 Mo., 560; Sann v. Jones Mfg. Co., 16 App. Div. (N. Y.), 252; 4 Am. & Eng. Ency. Law (1 ed.), pp. 37-8 and notes; 7 Am. & Eng. Ency. Law (2 ed.), p. 394 and notes.
    Third. The conduct of the woman constituted such contributory negligence on her part as would defeat a recovery in an action by her. Railway Co. v. Skiles, 64 Ohio St., 458; Railway Co. v. Elliott, 28 Ohio St., 340; Railway Co. v. Crawford, 24 Ohio St., 631; Koester v. Railway Co., 11 Circ. Dec., 283; 20 C. C. R., 475; Railway Co. v. Lally, 7 Circ. Dec., 711; 14 C. C. R., 333.
    Fourth. If the woman’s conduct constituted such contributory negligence on her part as would defeat a recovery in an action by her, then the conduct of the company was not in law negligence. Railway Co. v. Terry, 8 Ohio St., 570; Railway Co. v. Maurer, 21 Ohio St., 421; Railway Co. v. Snyder, 24 Ohio St., 670.
    Fifth. This case is clearly distinguished from the •case of Railroad Co. v. Langendorf, 48 Ohio St., 316, in two essential particulars. In the latter the person rescued was a little child incapable of negligence, and the rescuer was a stranger and not an employe of the company.
    In this case the person rescued was a woman, capable of negligence and negligent, and the rescuer, Lynch, was an employe and servant of the company, assuming that the woman was in peril.

      Mr. T. H. Loller and Mr. D. A. Hoilingsivorth, for defendant in error.
    At the close of the testimony, counsel for defendant submitted a number of propositions of law to be charged by the court most of which were adopted in the charge, and the rule of liability stated practically as laid down in Railroad Co. v. Langendorf, 48 Ohio St., 316.
    This, we think, instead of being prejudicial to the railway company, was unfair to the plaintiff, inasmuch as it was clearly his duty to fly to the rescue of any one in peril on the crossing, whether such peril was the result of negligence on the part of the company or not.
    ’ The charge put him in the attitude of a stranger, and his right to recover was put upon the ground that the woman he sought to rescue was exposed to danger by the negligence of the company. We still insist that this was not a necessary element in the case. The company owed him the duty of properly instructing him and also furnishing him with a sufficient number of assistants to adequately guard and protect the public at the crossing. He was in the discharge of a duty, and it was not for him to stop and weigh in his mind the negligence of the company, or whether or not the woman was guilty of contributory negligence in being where she was; when he saw the caboose coming down upon her it Avas his duty to act. It was enough for him to see that the caboose Avas not properly under control and was likely to collide with her. It was a danger signal that demanded his prompt attention. But the court took no account of this duty, the jury being plainly told that “to hold the railroad company responsible in damages for this injury, it must be shoAvn that the woman was in danger of being run over and injured by the approaching car, and that such danger was caused or created by the negligence of the railroad company.”
    It is not disputed that the woman had a right to cross the tracks as and where she did. What duty did the company OAve her?
    The court ansAvered this question in the charge by practically quoting from the opinion of Railway Co. v. Schneider, 45 Ohio St., 695.
    As between the Avoman and the railroad company on the question of their relative negligence, counsel do not contend that there was any error either in the admission of evidence or in the charge and direction of the court. It is practically conceded that, in a contest between them, it would be competent to show that the watchman provided by the company was inexperienced and uninstructed, that conditions at the crossing required more than one watchman to adequately guard the public, or to show any of the other alleged acts of negligence on the part of the company..
    But we claim further, although this is not necessary to an affirmance of the judgment by this court,, that the question of contributory negligence on the part of the woman was not one for the jury to consider. The rule in Railroad Co. v. Langendorf, 48. Ohio St., 316, is simply the negligence of the railroad company, not whether or not she contributed to bringing about her perilous condition. Was it negligence on the part of the company to leave the crossing in charge of only one watchman, and he both inexperienced and Uninstructed? Was it negligence to “kick” the caboose over the crossing without warning and without any one in front to control it or keep a lookout for persons on the crossing?
    The technical question of contributory negligence on her part might properly come up if an action were brought by her for damages against the railroad company or possibly, if a stranger had rushed upon the tracks to rescue her, and been injured, but we insist that it can not be made an element to affect the right of Lynch to recover in this action. It was not for’ him to inquire, when he saw the caboose coming down without proper control upon the imperiled woman,, whether or not, in addition to the apparent and certain negligence and wrong of the company, she was also guilty of some kind of negligence. It was his duty as watchman to act, not to reason why. Such a requirement would nullify effectually the humane rule established in Railroad Co. v. Langendorf, 48 Ohio St., 316.
    Did Lynch rashly and unnecessarily expose himself to danger? We think not. He saw this woman in peril. He had no time to consider what would be the best method of procedure, under the circumstances. Railway Co. v. Eistler, 66 Ohio St., 326.
    When a person, without his fault, is placed in a, situation of danger, he is not to be held to the exercise of the same care, and circumspection that prudent persons would exercise, where any danger is present; nor can it be said as a matter of law he is guilty of contributory negligence, because he fails to make the most judicious choice between hazards presented or would hare escaped injury if he had chosen differently. The question in such a case is not what a careful person would do, under ordinary circumstances, but what would he be likely to do or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury. Railway Co. w. Snyder, 55 Ohio St., 343; Railroad Co. v. Langendorf, 48 Ohio St., 316.
    As to the charge of the court, in regard to the negligence of the company, in placing an inexperienced man at this crossing, the general rule is, that if the master employs an inexperienced man, with knowledge of his inexperience, it is the master’s duty to instruct him as to his duty, and if his duty is dangerous, to especially call his attention to such dangers. This is the general rule where a man is seeking employment. In this case the plaintiff below, did not seek this position, but was placed there, by his superior officer, without any instructions as to his duties, further than general instructions to watch the crossing.
    It was competent for the plaintiff below not only to show that there was an inadequate number of crossing watchmen employed, but, also, the inexperience of the crossing watchmen. Bailey’s Master’s Liability for Injuries to Servants, p. 68 and pp. Ill, 112 and 113; Ridenour v. Mayo, 40 Ohio St., 11.
    The negligence of the company was the proximate cause of Lynch’s injuries, and the fact that the negligence of a third party contributed thereto is no defense. Watson on Damages, p. 158, and following: Banning v. Banning, 12. Ohio St., 437; Stetson v. Bank, 2 Ohio St, 167; Berry v. State, 31 Ohio St., 219; McHugh v. State, 42 Ohio St., 154; Scovern v. State, 6 Ohio St., 288.
    It was his duty as a watchman at this crossing to protect the public in traveling over the- same. That is what he was placed there for, and where one’s person is placed in a position of great peril by the negligence of another, the latter will be liable in damages for injury to a third party sustained in an effort to save the life of a person so imperiled, if the rescuer does not rashly and unnecessarily expose himself to danger. Andseth v. Railway Co., 70 Minn., 272; Eckert v. Railway Co., 43 N. Y., 503; Railroad Co. v. Langendorf, 48 Ohio St., 316.
   Shauck, J.

With respect to the general instructions given to the jury upon the subjects of negligence and the measure of recovery it'is sufficient to say that they were in substantial accordance with the familiar cases. But regarding the peculiar circumstances of the case, counsel for the company insist that the rescuer could not recover for the injury to him if the person rescued was in peril because of such contributory negligence on her part as would have prevented a recovery by her if she had been injured. The trial judge was not requested to give to the jury an instruction embracing that view of the law; but the verdict for the plaintiff appears to have been returned without regarding the evidence tending to show negligence on her part, and it is assumed that this was in accordance with the instruction given that the law will not impute negligence to one attempting, to save human life unless the attempt is made under such circumstances, or in such a manner, as to constitute rashness or recklessness. The jury had been told in another portion of the charge that there is no presumption of negligence against either party, and they perhaps understood the word impute to be used in its theological sense, and the instruction to signify that his right of action was not affected by her negligence. This portion of the charge was given in the language of this court in Railroad Co. v. Langendorf, 48 Ohio St., 316, but it is insisted that the case cited and the present case are distinguishable by the two facts that the person whose rescue was there attempted was an infant incapable of negligence, while here she was chargeable with the consequences of her conduct; and Langendorf was a stranger to the company, while the plaintiff in the present case was its employe. Obviously the cases present the suggested differences of fact. Are those differences of legal significance? Apparent support is given to the view presented by counsel for the company by commentators whose conclusions have been affected by misconceptions of the three cases which they cite: Railroad Co. v. Hiatt, 17 Ind., 102; Donahoe v. Railway Co., 83 Mo., 560; Sann, Admx., v. The H. W. Johns Manufacturing Co., 16 App. Div. (N. Y.), 252. In none of these cases was the judgment placed upon the ground that the person whose rescue was attempted had been guilty of negligence which was contributory merely, but that his was the only negligence which the case presented—that the defendant had not been negligent. The cases were determined upon the self-evident proposition that an action of negligence cannot be prosecuted successfully against one who has not been negligent. In the present casé the jury were distinctly instructed that their verdict must be for the company unless the evidence showed that it had been negligent as charged in the petition. The view of the law which was given to the jury in the present case was expressed by Grover, J., in Eckert v. Railroad Co., 43 N. Y., 502. It has been adopted in Railroad Co. v. Langendorf, and in many other cases. It is worthy of notice that while some of them were cases of the rescue, or attempted rescue, of infants, that fact has not been regarded as having legal significance, and the judgments have been placed upon grounds which are found in the. present case. If the view now urged by counsel is considered as unaffected by the decided cases, it must be rejected because of the impracticability of applying it. It invokes the principle of subrogation as the test of the plaintiff’s right to recover. If that principle should be adopted to determine his right to recover, for equal reason it should determine the amount of his recovery. By what process could it be ascertained what the extent of her injury would have been if the attempted rescue had failed? The view presented would lead to the conclusion that if the attempted rescue had failed and she had been injured without her fault, no right of action would have accrued to him because such right would have accrued to her. The insurmountable difficulties which would be met in an attempt to apply the suggested doctrine in an action under the statute for the benefit of the next of kin when the injuries of the rescuer prove fatal, need not be stated. It seems clear that the law will not admit of the suggested refinement.

Lynch’s right of action is not unfavorably affected by the fact that he was an employe of the company. Approbation of his conduct should not lead to a recovery in his favor contrary to the doctrines of the law upon the subject, but a brief consideration of those .doctrines will show that his recovery was proper. The evidence tended to show, and the charge required that it should establish, the negligence of the company. One is liable for the consequences of his negligence unless there appears to be a contributing cause arising from conduct of the plaintiff which, in the eye of the law, is reprehensible, such as unlawfulness or negligence. Can it be said that the generous and heroic performance of duty is reprehensible? It is according to settled and salutary rules that a recovery is denied one who voluntarily goes into a place of danger, omitting to use present opportunities, for circumspection and care, and failing to discharge his primary duty to regard his own safety. But if the reason of the law is its life, can it be said that the same judgment awaits one who is required to act under circumstances which leave no opportunity for circumspection, and in the discharge of the primary duty to regard the safety of others? Would it be considerately said that the duty imposed upon a railway company to keep a watchman at a crossing such as this would be discharged by keeping a watchman under instructions to care for those only who, if injured, might maintain actions against it? The duty is to the public. The present case showed that the woman rescued was in great peril. Though called as a witness for the company, she testified to her utter confusion at the time of the accident, and that she did not know whether she was swept from the track by the hand of the watchman or the end of the caboose. There was, therefore, a situation which called upon the watchman to act with the utmost promptness, and for that situation he was not-responsible. No fact of legal significance distinguishes the present case from Railroad Go. v. Langendorf, and the conditions to the plaintiff’s recovery were properly stated to the jury. To the authorities cited in that case may be added Gibney v. State of New York, 137 N. Y., 1, and Eckert v. Railroad Co., 57 Barb., 555.

Judgment affirmed.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


source: Caselaw Access Project

author: Davis, J.

license: Public Domain

text:
    Germania Fire Insurance Co. v. Schild.

      Insurance policy—Stipulation ‘‘this entire policy shall be void”— Not a severable risk, when.

    An insurance policy which contains a stipulation that “this entire policy shall be void” on certain named conditions, is not a severable risk, although the amount of insurance is distributed among different classes or articles of property. Coleman & Co. v. Insurance Co., 49 Ohio St., 310, distinguished.
    (No. 8051
    Decided October 27, 1903.)
    Error to the Circuit Court of Huron county.
    The defendant in error sued upon a policy of insurance which contained the following clause:
    “This entire policy shall be void if the insured has concealed or misrepresented, in writing, or otherivise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”
    The policy was for the sum of $625, and was distributed as follows: $200 on office furniture and fixtures of every description, useful and ornamental, including carpets, rugs, desks,, chairs, tables, library case, medicine cases; $250 on surgical instruments and medicines of all kinds, used in the business of the insured; $75 on surgical operating chair; and $100 on medical library, all while contained in the two and one-half story, shingle roof, frame building, situate on No. 71 Brownell street, Cleveland, Ohio.
    On the trial it appeared that the surgical operating chair had been bought by the plaintiff on a conditional purchase, the title remaining in the vendor until the chair was fully paid for;, and it further appeared that the chair had not been fully paid for when the policy was issued; and, therefore, that the interest of' the plaintiff in the property insured was not truly stated in the policy.
    The court charged the jury as follows:
    “The first and second of these defenses relate to the ownership of the property insured. It is said that it is one of the conditions of the policy that if the interest of the plaintiff was not truly stated, or if he was not the sole and unconditional owner of the property insured, or if the property was encumbered by chattel mortgage, then the policy is void. I say to you that in such case, the policy would be rendered void in part, but not necessarily in its entirety; that is to say it would be void, and plaintiff would have no right of action upon it as to any item or items of the property insured to which either of these misstatements or defective statements applied; but the policy in other respects, and as to the other property insured would remain in force.
    “This defense is particularly applicable to the so-called surgical chair mentioned in the policy. Under the undisputed evidence in the case, the plaintiff is not ■entitled to a verdict for any loss sustained by the destruction of said chair or damage to it.”
    And the court refused to instruct the jury to the effect that if they should find from, the evidence that at the time of securing the policy of insurance the plaintiff was not the sole and unconditional owner of the surgical chair, and that he fraudulently concealed this fact from the insurance company, then this was such a concealment and misrepresentation as would avoid the whole policy, and the plaintiff could not recover. Verdict was rendered for the plaintiff in the :sum of $430. A motion for a new trial was overruled, and a bill of exceptions taken, and petition in error filed in the. circuit court, which court affirmed the judgment of the court of common pleas.

      Mr. O. IF. Fuller and Messrs. Andrews Bros., for plaintiff in error, cited and commented upon the following authorities:

      Coleman & Co. v. Insurance Co., 49 Ohio St., 310; Merrill v. Insurance Co., 73 N. Y., 452; Schuster v. Insurance Co., 102 N. Y., 260; Smith v. Insurance Co., 118 N. Y., 518; Insurance Co. v. Myers, 62 Ohio St., 533; West v. Insurance Co., 27 Ohio St., 1; McQueeny v. Insurance Co., 52 Ark., 257; Insurance Co. v. Clark, 53 Ohio St., 414; Loomis v. Insurance Co., 77 Wis., 89; Carey v. Insurance Co., 84 Wis., 80; Burr v. Insurance Co., 84 Wis., 76; McGowan v. Insurance Co., 54 Vt. 211; Insurance Co. v. Tilley, 88 Va., 1024; Samo v. Johnson, 2 Can. Sup. Ct., 411; Cuthbertson v. Insurance Co., 96 N. C., 480; Martin v. Insurance Co., 31 Atl. Rep. (N. J.), 213; Thomas v. Assurance Co., 162 Mass., 29; Friesmith v. Insurance Co., 10 Cush., 587; Brown v. Insurance Co., 11 Cush., 280;
      Lee v. Insurance Co., 3 Gray, 583; Kimball v. Insurance Co., 8 Gray, 33; Insurance Co. v. Hamilton, 82 Md., 88; Baldwin v. Insurance Co., 60 N. H., 422; Insurance Co. v. Spankneble, 53 Ill., 53; Insurance Co. v. Walsh, 54 Ill., 164; Clark v. Insurance Co,, 6 Cush., 342; Insurance Co. v. Lawrence, 4 Metc. (Ky.), 9; Insurance Co. v. Howell, 54 S. W. Rep. (Ky.), 852; Names v. Insurance Co., 95 Ia., 642; Insurance Co. v. Connally, 56 S. W. Rep. (Tenn.), 828; Cushman v. Insurance Co., 5 Allen, 246; Moore v. Insurance Co., 28 Gratt. (Va.), 508; Schweinfurth, Admr., v. Railway Co., 60 Ohio St., 232; Sternfield v. Insurance Co., 50 Hun. 262; Levy v. Baillie, 7 Bing., 349; Brugnot v. Insurance Co., 12 La., 326; McLeod v. Insurance Co., 1 Russ. & Geld. (N. S.), 21; Joyce on Ins., secs. 3341, 3342; Richards on Ins., sec. 135; also page 144; Ostrander on Ins., pp. 87, 88; May on Ins., note to sec. 277; sec. 27 (4 ed.); 2 May on Ins., (4 ed.), sec. 477; Plath v. Insurance Co., 23 Minn., 479; Assurance Co. v. Stoddard, 88 Ala., 606; Barnes v. Insurance Co., 51 Me., 110; Dole v. Insurance Co., 51 Me., 472; Havens v. Insurance Co., Ill Ind., 90; Gottman v. Insurance Co., 56 Pa. St., 210; Elliott v. Insurance Co., 66 Pa. St., 22; Monaghan v. Insurance Co., 53 Mich., 238; Garver v. Insurance Co., 69 Ia., 202; Bryan v. Insurance Co., 8 W. Va., 605; Geiss v. Insurance Co., 123 Ind., 172; Herman v. Insurance Co., 45 N. Y. Super. Ct., 402; Bank v. Insurance Co., 57 Conn., 335.

      Air. A. M. Beattie, for defendant in error, argued orally but submitted no brief.
   Davis, J.

It has been twice adjudged by this court that policies of insurance, like other contracts, should ibe reasonably construed, so as to give effect to the express words of the parties and not to defeat their intention. West et al. v. Insurance Co., 27 Ohio St., 1, 9-10; Insurance Co. v. Myers, 62 Ohio St., 529. See also Joyce on Insurance, secs. 208, 216. And this, rule of construction should be observed notwithstanding the rule that when a policy is open to two interpretations which are equally fair, that one should be preferred which would give to the insured the greater-" indemnity.

There is no ambiguity in this policy; and it is not. contended that it is ambiguous. Counsel for the defendant in error insists that the words: “This entire policy shall be void,” etc., have no more force than if the word “entire” were omitted, and that therefore-this case is controlled by Coleman & Co. v. Insurance Co., 49 Ohio St., 310. There is much force in the argument that the clauses, “This policy shall become-void” and “This entire policy shall become void,”' mean the same thing; but by no legitimate construction can the latter clause be restricted to less than the-whole policy and whatever is included in it, and therefore the strength of the argument, if it has any, goes-to the soundness of the decision in Coleman & Co. v. Insurance Co. The two cases, however, are plainly distinguishable. In the former case the language used in the policy, whether ambiguous in itself or not, had frequently been the subject of construction and- ingenious debate, resulting in diametrically opposite conclusions in the courts. In this case the parties, no-doubt with knowledge of previous controversies, seem to have endeavored to put the indivisible character of their contract beyond controversy by inserting the word “entire;” and in our judgment they succeeded in their purpose. Unless we reject this controlling word and thus'make a new contract for the parties, the-policy means precisely what it says and cannot be valid in part and void in part. The parties have agreed that it should not be a severable risk and they have clearly expressed that intention.

In one case the policy provided that: “This entire policy, unless otherwise provided by agreement indorsed thereon or added hereto, shall be void,” etc. It was held that: “The stipulation in regard to the forfeiture is applicable to the policy as an entirety .” Insurance Co. v. Hamilton, 82 Md., 88.

In another case the policy contained these words: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, if the subject of insurance be a building on ground not owned by the insured in fee simple.” The insured owned the building which was insured but did not own the land on which it stood. The court said: “We have looked to see whether the suit might not go on as to the chattels contained in the building. The words of the written contract are: ‘This entire policy, etc.,, shall be. void if the subject of insurance is a building,’ etc. This language is plain and must control;” and the court directed the lower court to enter judgment for the defendant. Martin v. Insurance Co., 57 N. J. Law, 623.

In New York the court of appeals has distinguished a policy providing that “this entire policy and every part thereof shall be void” from cases which are cited, and which are like Coleman & Co. v. Insurance Co., supra, the court saying: '“This policy is quite different in its legal effect from those considered in' the cases cited, it not being expressly provided in those policies, as in this, that a misrepresentation of the situation of one of the subjects insured should invalidate the insurance on all other property covered bv the policy.” Smith v. Insurance Co., 118 N. Y., 518, 526. “Every part thereof” includes the whole the same as “This entire policyand we therefore do not regard this New York policy as materially differing; in its provisions from the one in the case at bar.

The judgments of the circuit court and the court of' common pleas are

Reversed.

Burket, C. J., Shauck, Price and Crew, JJ., concur.


author: Spear, J.

text:
    The Baltimore & Ohio Railroad Co. v. McClellan, Admx.

      One in full possession of senses—Should exercise them in crossing track—Obscured by smoke and steam—Negligence not to wait till smoke, etc., clear away—Presumption of negligence—Absence of rebutting testimony—Refusal to sustain motion to direct verdict, error, when.

    1. The rule 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, applies to a condition where the atmosphere is more or less clouded by steam and smoke, and it is negligence on his part which will defeat a recovery for injuries received from a passing train to undertake to cross without waiting for the atmosphere to clear so that his vision may be unobstructed, or taking other adequate means to ascertain the presence of danger.
    2. Where the testimony of the plaintiff raises a clear presumption of negligence on his part which directly contributed to his injury, and no testimony is offered by him tending to rebut that presumption, it is the duty of the trial court to sustain a motion by the defendant made at the conclusion of plaintiff’s evidence, to direct a verdict, and a refusal to sustain such motion is error,
    (No. 8260
    Decided October 27, 1903.)
    Error to tbe Circuit Court of Richland county-

      The action below was brought by defendant in error,, Ida L. McClellan, Admx., against the Baltimore & Ohio Railroad Co., to recover for the negligent killing of Madison McClellan, who met his death by being run over by the caboose of a local freight train. The defense was a denial of negligence by defendant, and a charge of contributory negligence on the part of the deceased. At the conclusion of the plaintiff’s testimony defendant moved the court to direct a verdict for defendant, which was overruled and the cause submitted to the jury on plaintiff’s testimony. A recovery was had which was sustained by the circuit, court, and the Company brings error. Facts necessary to an understanding of the case are stated in the opinion.

      Mr. J. H. Collins and Messrs. Cummings é McBridey for plaintiffs in error.
    I. No act of negligence is charged in the plaintiff’s petition and proven by the evidence,
    1. The speed of the train was not negligence. Railway Co. v. Schneider, 45 Ohio St., 678.
    2. Failure to have a watchman at the crossing was not negligence. Railway Co. v. Schneider, 45 Ohio St., 678.
    3. It was not negligence to construct the side track described in the petition and run the train thereon, as described.
    4. It may have been a misdemeanor to allow the engine to stand on the street the length of time stated, but that did not cause the death of McClellan, and no-recovery can be had in this case because of such fact..
    5. To allow the engine to emit smoke was not negligence. If it-was, then a railroad company-is always, negligent when running a train on its road-.

      6. To allow the engine to make a noise is not negligence. Engines always make more or less noise when in use.
    7. As to signals. The train was doing switching work in the yard, and was backing toward the crossing, .and sections 3336-3337 do not apply. Besides, there was no evidence tending to prove that failure to give the signals caused the accident. Pennsylvania Co. v. Rathgeb, 32 Ohio St., 72.
    8. The terms omitted from the petition characterize various acts as being negligently done. Each and all -of them plead conclusions of law and not facts, and are, therefore, of no effect; and without them the petition does not state a cause of action. Pelton v. Bemis, 44 Ohio St., 51; Railroad Co. v. Wilson, 31 Ohio St., 555.
    II. The decedent was negligent.
    1. It was certainly negligence to step on the track in front of an approaching engine only a few feet distant This seems to be conceded, but in any event it meeds no citations of authorities in its support.
    2. It was negligence to step on the track which was ¡so obscured by smoke and steam that an approaching -engine could not be seen. Heaney v. Railway Co., 112 N. Y. C. of App., 122.
    The first specification of negligence is with refer-ence to the backing of this train without giving the ¡statutory signals. Dick v. Railroad Co., 38 Ohio St., 396; Railway Co. v. Elliott, 28 Ohio St, 340; Railway Co. v. Landphair, Admx., 13-23 O. C. C., 435; Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Railroad Co. v. Depew, 40 Ohio St., 121; Pennsylvania Co. v. Alburn, 13-23 O. C. C., 130.
    It is the duty of a person approaching a railroad as ¡a matter oí law to use his senses, and if he is injured when by so doing, he could have seen or heard the train, it is in law contributory negligence which will not permit a recovery. Railway Co. v. Whitacre, 35 Ohio St., 627; Black on Proof and Practice, 88; 1 Thompson on Neg. (old ed.), 439; Brancroft v. Railway Co., 97 Mass., 275; 5 Rapalje and Mack Digest, 198; 1 Thompson on Neg., 461; Hardy v. Railway Co., 42 N. Y., 468; Gorton v. Railway Co., 45 N. Y., 601; Railway Co. v. Swartout, 6 Circ. Dec., 768; 14 C. C. R., 582; Railway Co. v. Skiles, 64 Ohio St., 458; Railway Co. v. Houston, 95 U. S., 696; s. c. Law. Ed., Book 24, 542; Railway Co. v. Freeman, 174 U. S., 379; 43 Law. Ed., 1014; Schofield v. Railway Co., 114 U. S., 615.
    It seems to us that this party showed by his own evidence that he was guilty of contributory negligence to such an extent that it became a question of law and not of fact that the motion to direct a verdict should have been sustained.
    We must not fail to consider the conduct of the decedent as well as the conduct of the company. How. did he conduct himself? Was it with ordinary care? Was it with ordinary prudence? Or did he recklessly rush into danger? Railway Co. v. Krichbaum’s Admr., 24 Ohio St., 119; Railway Co. v. Snyder, 24 Ohio St., 677; Kerwhacker v. Railway Co., 3 Ohio St., 172; Timmons v. Railway Co., 6 Ohio St., 105; Railroad Co. v. Terry, 8 Ohio St., 570.
    We come now to their specification of negligence caused by the train emitting smoke and making great and loud noises. There is not a particle of evidence to show that the noise claimed to have been made by the engine was not that of the ordinary workings of an engine. The simple fact that they prove that the engine was making a noise without showing that it ' was.done in a negligent manner eliminates the question of noise from this ease.
    Looking now to their specification of smoke as an element of negligence. McCrory v. Railway Co., 31 Fed. Rep., 531; Railway Co. v. Peters, 1 Circ. Dec., 20; 1 C. C. R., 34 (affirmed, unreported), 17 Bull., 247.
    The evidence shows in this case that McClellan went to the depot for the purpose of making inquiries with reference to some freight he was expecting and it was no part of his business to go into the dangerous place he did. Diebold v. Railway Co., 50 N. J. Law, 478.
    The contention of the defendant in error that because the smoke somewhat obscured the view of the party, that that would excuse to a certain extent the' conduct of the deceased is not a correct statement of the law governing this case. Railway Co. v. Ryan, 11 Am. Neg. Cases, 233; s. c. 17 Col., 98. Clearly this states the law as applicable to the conduct of this decedent. Mann v. Railway Co., 11 Am. Neg. Rep., 466; s. c. 128 Ind., 138; Railroad Co. v. Fisher, 11 Am. Neg. Rep., 574; s. c. 49 Kas., 460; McAllister v. Railway Co., 64 Ia., 395; Chase, Admr., v. Railway Co., 78 Me., 346; s. c. 11 Am. Neg. Rep., 652; Lesan v. Railway Co., 77 Me., 85; State v. Railway Co., 77 Me., 538; State v. Railway Co., 76 Me., 357; Illinois, etc., v. Hall, 72 Ill., 222.
    We insist that the charge of the court as a whole is erroneous. First and foremost it does not charge the jury that it was a positive duty of the plaintiff to look and listen, but simply says he did thus and so. We quote from a portion of the charge as follows: “What were the surroundings? What would excuse him if he did not look or if he had looked, would he have seen and if there was smoke and steam it is a question whether he ought to have looked more carefully. Did he look carefully or was he prevented from looking by smoke and steam and noise. He could see if nothing obscured it. That is a question for the jury. He could hear if nothing prevented his hearing. Did he? That is a question for the jury. And were the circumstances such that if he had looked and listened that he could have, exercising ordinary prudence, seen the danger and avoided it,”
    We insist that, that portion of the charge is erroneous. We insist that it was the duty of the court to have told that jury in positive terms that it was the duty of the decedent to look and listen before going upon that crossing and that the failure of the court to do so is error for which this judgment ought to be reversed. Railway Co. v. Reynolds, 13-23 O. C. C., 199; Railway Co. v. Landphair, 13-23 O. C. C., 135; Pennsylvania Co. v. Alburn, 13-23 O. C. C., 131, 115; Black on Proof and Pleading in Accident Cases, 207.

      Messrs: Douglass & Mengert, for defendant in error..
    We do not claim the Company was negligent because it had a railroad with side tracks at Butler, nor because the engines emitted smoke and steam when in operation, nor because the engines at times become noisy, nor do we claim that the simple backing out of the local freight upon the main line was negligence. There are hundreds of things performed every day of our lives, if done in proper manner that we have á perfect right to do and no one can be heard to complain; yet a perfectly proper thing tó' be done, when done carelessly, may result in what we call negligence.
    Now, the Company knew that many people would be at the depot. It also knew that these engines wére making a great noise thereby destroying the sense of hearing as a protection against impending danger, that their presence would naturally detract attention from other dangers; that the view of its (the local’s) approach must of necessity be obstructed; that the double header standing there so long, a person wanting to cross would naturally do so; yet, notwithstanding the fact that it had blocked the side walk so that pedestrians could not cross at right angles with the depot, but Avould be compelled to walk out on the main line until the front end of the front engine was reached; that this double header had already stood there twenty or thirty minutes, that even though the passenger train had left for Mansfield it, the double header, had not moved; that no one, if he reasoned at all, would think for a moment that any train would for half an hour at least be coming from the direction that No. 3 had gone, because this is a single track road; the Company also knew that the local itself on this spur was three or four hours late; that it was then using a track that was seldom used for that purpose and that if one reasoned at all he would not conclude that this local would probably be there on account of its being so late. Yet, notwithstanding all this the Company backs out its local freight down past the depot, through this smoke and steam, without warning of any kind as we have said, in utter disregard of the lives of any one who on account of the Company blocking the way, might be on this track. We say this is negligence pure and simple and of the grossest kind and will argue the matter no longer, because if this is not negligence then we can conceive of few acts at a depot upon the part of a railroad company that could be denominated such.
    If this would not make a question of negligence that should be submitted to a jury it would be difficult to make one that should. Railroad Co. v. Mackey, 53 Ohio St., 370.
    The rule in Ohio is, that negligence is never presumed. And this is true whether the rule be applied to the negligence of the defendant, which is the subject matter of the action or to the negligence of the plaintiff denominated as contributory negligence.
    Nor ' is this rule limited to Ohio, but the rule is quite universal, and we believe almost as well defined as the rule applying to fraud, which is never presumed. Railway Co. v. Crawford, 24 Ohio St., 631; Railway Co. v. Fleming, 30 Ohio St., 480; Hoyt v. Hudson, 41 Wis., 105; Johnson, Exr., v. Railway Co., 20 N. Y., 65; 1 Thompson on Neg., sec. 402; Guggenheim v. Railway Co., 66 Mich., 150; Hoye v. Railway Co., 62 Wis., 668; Bennett v. Keehn, 67 Wis., 157; Railway Co. v. Whitacre, 35 Ohio St., 627; Railway Co. v. Nolthenius, 40 Ohio St., 376; Railway Co. v. Snell, 54 Ohio St., 197; 1 Thompson on Neg., secs. 416, 446; Railway Co. v. Weber, 76 Pa. St., 157; Schafer v. City of New York, 154 N. Y., 466; French v. Railway Co., 116 Mass., 537; Randall v. Railway Co., 132 Mass., 269; Railway Co. v. West, 32 N. J. Law, 91; Ferguson v. Railway Co., 63 Wis., 145; Duame v. Railway Co., 72 Wis., 523; Staal v. Railway Co., 57 Mich., 239; Railway Co. v. Ogier, 35 Pa. St., 60; Railway Co. v. Weber, 76 Pa. St., 157; Nugent v. Railway Co., 80 Me., 62.
    While in Ohio, as well as in most all other states, it is the absolute rule that a traveler approaching a railroad station must stop, look and listen, yet this rule in Ohio, as in most of the other states, under certain circumstances, is modified. Railway Co. v. Snyder, 24 Ohio St., 670; Robison v. Gary, 28 Ohio St., 250; Pennsylvania Co. v. Rathgeb, 32 Ohio St, 66;
      Weiser v. Railway Co., 6 Circ. Dec., 215;. 10 C. C. R., 14.
    So we say, that while the presumption in the absence of evidence is that he did look and listen yet is it not plain that he had good excuse even though he failed to look toward Mansfield? And to submit the question of his alleged negligence to the jury under all these varied circumstances, was certainly proper.
   Spear, J.

The accident occurred at a street crossing in the village of Butler, Ohio, about three o’clock of the afternoon of March 17, 1900, at a point where the main street of the village is crossed by two tracks of thé Company. At the point stated the street runs substantially north and south and the railroad tracks substantially east and west. The station house is at the south-east angle of the intersection, facing north. The southerly track is the main track and the northerly one a side track, and both tracks curve sharply to the north-east from a point about one hundred and sixty feet from the crossing. About one hundred and sixty-five feet easterly from the crossing a spur track starts on the south side of the main track and extends upon a curve several hundred feet in a north-easterly direction, veering to the north and north-west. To the east of the station some one hundred and fifty feet, stands a water tank. The depot platform extends from the station-house northerly to the main track, easterly to a point near the water tank, and westerly to the line' of the street. At the time of the accident there stood upon the side track, headed west, a freight train with two locomotives attached, the forward one extending across the sidewalk and a few feet into the street proper. This train had been in that position twenty-five to thirty minutes. A passenger train .known as No. 3 had passed east just before the accident. Upon the spur track there had been standing a local freight train, placed there to allow the passage of No. 3, and intending to follow so soon as No. 3 had passed. The caboose of this train stood near the point of junction of the spur with the main track, the locomotive being at the other end. The cylinder cocks of the head engine of the freight train (the one standing on the side track headed west) were open, and considerable steam was escaping, making some noise, and a good deal of smoke was issuing from the smokestack. The smoke and steam came on the south side of the engine, much of it to the ground. It was a little windy at the time, and the wind being from the north-west carried the steam and smoke in a south-easterly direction ; that is, toward the easterly portion of the station house and over the main track.

The deceased was the keeper of a restaurant situated on the east side of the street a short distance north of the crossing. Just before the accident he had been to the station to inquire about some , oysters he was expecting and was on his return when it occurred. He was seen coming out of the door of the freight office and passing westerly on the platform. He was also seen in the act of stepping off of the platform and on to the track, the main track. He was going in a north-westerly direction, his back being partially toward the east. Some two or three minutes after No. 3 had passed, the local freight, the train which had been waiting on the spur track, backed westerly to clear the switch, coming at a speed of about twelve miles an hour. No alarm of any kind was given by the trainmen on the local, nor was any one stationed in the rear of the . caboose to give warning. McClellan, had just stepped down off the platform onto the. track when the caboose struck him, having apparently made but two steps. He was not seen to stop from the time he was first seen going out of the door of the freight office until he was struck, nor was he seen to look to' the east, the direction from which the caboose was coming. He had just reached the middle of the track, had made a second step, was in a walking position, walking in a north-westerly' course, headed in that direction to avoid the front of the engine of the freight train.

Three features of the case call for comment. One respecting the presence of the locomotives of the freight train on the side track, another the operation of the local freight, and third, the action of the deceased himself.

It is claimed that the placing and maintaining of the locomotive partially across the street, and the producing there of smoke and of steam with accompanying noise, was of itself negligence. But locomotives cannot be handled without the issuing of more or less smoke, nor can they be held in a waiting position, which was the fact as to this freight train, without the escape of more or less steam with' some noise.. A use which is a natural and necessary use of 'a locomotive cannot be of itself a negligent use. The leaving of the nose of that forward locomotive across the sidewalk for the length of time it stood there, was an improper act; it may for aught we know have been a misdemeanor, but it was not actionable negligence in this case, although its presence there is an incident to be considered.

The management of the local freight was of a different character. It stood upon that spur track awaiting the passing of the passenger train, in a position where' necessarily when it should back far enough to get upon the main track its rear would be protruded upon the street, and whether in backing the train that afternoon without the sounding of the whistle and the ringing of the bell the trainmen violated the statute or not, it certainly was incumbent upon them in some reasonable way to give warning, as by placing a watchman at the rear of the caboose, of the approach of the train to the street. The neglect of all attempt to warn was palpable negligence.

But what shall we say of the action of the deceased himself? He was possessed of all his faculties. He was a resident of the village, and knew the location of the spur track and' its uses. He knew, apparently at least, that the passenger train had passed and that the local freight was in, for he was expecting a shipment of oysters probably coming by one or the other of those trains. He was at the station to inquire for that consignment, so that, the presence of trains of that character, then or shortly before, near the station, would naturally be known to him. He had been on the platform far enough to the east to see the local freight as it stood upon the spur track. He knew— that is, he must be. held'to have known—that a steam railroad track is necessarily a dangerous place; that, locomotives and cars, once in motion, are not easily or' quickly stopped. All this must be áttributed to him. What, then, was his duty from the standpoint of self-preservation? Wasn’t it to look and listen for danger before stepping upon that track? What less could be expected of a person in possession of his senses? It is. true that there is a more or less strong presumption of fact that the instinct of self-preservation will prevent a man from rushing into danger, -but do we not see by every-day experience that men become careless of danger, either because of familiarity with it, or of temporary absence-of mind which causes them to be oblivious of its presence? No doubt this latter condition obtained with the unfortunate gentleman who dost- his life that afternoon, for, not only is there no -evidence in the record that he either, did look or listen, but the strong inference from the whole record is that he did neither.

But it is claimed, and this is the real and serious contention of counsel, that neither listening or looking would have availed; that the noise of the escaping steam would have neutralized the one and the cloud of smoke and steam would have rendered useless the other. There really is no evidence in the record that warrants this conclusion. It is evident that the train must have been making some considerable noise as it .approached ¡the crossing, a noise different in character from that of the escaping steam, and the volume of the latter noise is left very shadowy by the. testimony. Nor is .there greater certainty about the presence of .any considerable amount of steam and smoke in the immediate whereabouts of the deceased at the fatal moment. Four witnesses testified to the presence of steam and smoke in the vicinity, .but one only (McLaughlin) was in a position to notice their presence ;at the moment of the accident. One witness (Crowner) was in the hotel office, about sixty feet south; he testified to the presence of smoke and steam generally,, but ■was silent as to its presence at the moment when and the exact place where the accident occurred; he heard the noise of the trucks, and the first .he saw of the ■accident was a man under the wheels. One witness (McOready) who saw all of the transaction of the accident from the telegraph office in the depot did not -observe the presence of steam and smoke at all. Another (Miller) who stood by him in the office at the ■time,, saw the smoke and steam, and observed that it was .carried easterly, and over the main track by the wind,- but he did not see McClellan when he was struck, and did not know of the fact until his attention was called by McCready to the presence of a man under the caboose. Another witness (McCurdy) testified with much fervor for plaintiff below, and was ready to speak with confidence respecting smoke and steam, but this witness met McClellan going west on the platform while he (the witness) continued some distance east, and did not then look around or know of the accident until he heard the scream, and finally admitted on the stand that he didn’t know by looking anything about the situation at the moment. McLaughlin, above referred to, saw the whole of the accident. He was on the street about two hundred feet south from the scene, and speaks of the general presence of steam and smoke in the vicinity; there was considerable smoke; I noticed the steam; it (the steam and smoke) came on the.south side of the engine and some of it came to the ground; it blowed to the ground and toward the depot; saw some along the sidewalk at the depot between that and the crossing. This much respecting the observation of the witnesses as to the presence of steam and smoke. It is to be noted that two only of the witnesses saw the deceased just before and when he was struck, viz.: McCready and McLaughlin, and their testimony is -vitally important as to his conduct. The former saw the caboose when within a very few feet of the deceased, and saw nothing to prevent McClellan seeing the caboose if he had looked. He first saw McClellan as he stepped down from the platform, in front of the rear end of the local; was going in a north-westerly direction; he had just, stepped down off of the platform onto the track when the train hit him. McLaughlin doesn’t undertake to say that the deceased could not have seen the' caboose if he had looked, but says he don’t know; and adds that he didn’t see him look. He saw McClellan when he was struck. He was in the middle of the-track; had just stepped from the platform to the track, and had made his second step; was in the middle of the track in a walking position, Avalking in a northwesterly direction. As McClellan was headed northAvest he would have had to turn somewhat to look to. the east, and this Avitness had then good opportunity of noting Avhether he turned or not. But one other (McCready) had such opportunity, and he saw no attempt on McClellan’s part to look. Both Avitnesses, saAv the caboose before McClellan was struck; indeed every witness saAv the caboose as it Avas backing down,, although the position of some of them was such as to. make their observation of much less significance than that of McCready and McLaughlin. Taken as a whole, however, the plaintiff’s own' evidence shows clearly that the deceased could have seen the caboose if-he had looked before stepping on the track, and that he did not look.

It is manifest that the condition-of the atmosphere Avould be changeable; Avhat Avould be its condition at one moment might be entirely changed the next, and it is a most significant fact that every Avitness Ávho saw the accident, or was near it, himself saw the caboose before it struck McClellan.

■ This resume is given not for the purpose of weighing the evidence, but for the purpose of illustrating the kind of a case Avliich the plaintiff beloAV presented, and Avhich Avas sustained by the trial court and by the reviewing court as one warranting a recovery, and for the further special purpose of showing what ought to Ihave been done with the motion to direct a verdict

It must be. apparent that the evidence produced by the plaintiff below at the trial, giving to each circum- : stance appearing in proof the most favorable, construction possible, showed beyond question that the deceased was negligent in a manner directly contributing to his death unless the presence of steam and rsmoke released him from the duty to exercise care. Does the presence of the smoke and steam, conceding all that is claimed for it, change the case? He knew the exact situation. He knew the dangers as well as any man could; the dangers that lurk about the track of a steam railroad. He found, if the claim of plaintiff below is correct, a temporary obstruction to his vision. A little patience, a wait only of a moment, and the atmosphere would be-cleared, and the opportunity for effective vision restored, and.as afterward proved, the whole danger obviated. His stepping upon the track at that point at that moment was an unnecessary act. He could easily have crossed the street south of the track and then have been free from danger. The rule of law of this state is clear. A person in possession of his senses approaching such a steam railroad known to him must look and listen; failing this he is guilty of contributory negligence which prevents a recovery from injuries arising from such failure, unless some further fact appears which relieves him. .In the present case the plaintiff’s testimony raised a clear presumption of contributory neg: ligence, and no tangible proof whatever was given which tended to rebut that presumption.

The case made is not one which presented a conflict In the evidence on any vital point. If such conflict Ihad been presented then the motion to direct a verdict should have been overruled and the cause given to the jury. The rule is that whether or not there' is evidence tending to prove an essential fact is a question, for the court, and if it be determined that there is not,, then there can be no conflict, and there is no question for the jury. The case is Wholly dissimilar from the-reported cases where a close question of fact appears- and the judgment of a jury is required to determine it. ‘As in Hart v. Devereaux, 41 Ohio St., 565, where the-deceased was driving a pair of spirited horses over a crossing at the Side of which stood a locomotive blowing off steam which frightened the horses, and so engaged the driver’s' attention that he did not observe-the approach of an express train coming rapidly and without warning from-the opposite direction,-the view down the track being obscured by buildings, and was-killed by the express. As, also, in Railway Co. v. Snell, 54 Ohio St., 197, where there was-a conflict in. the evidence as to whether the injured party was-exercising his faculties of seeing and hearing, and it was-held a proper question to be-submitted to the jury. The case at bar more nearly resembles Railway Co. v. Whitacre, 35 Ohio St., 627, where it is held that: where-a person familiar with a dangerous railroad: crossing, in passing over the same, neglects the exercise of- any care to ascertain -if a passing train is near he is guilty of negligence, and the mere fact that he had forgotten that he was in the vicinity of the crossing AVill hot excuse; also that where the plaintiff’s-own testimony raises -a presumption of contributory negligence the burden rests upon him to remove it : A point pertinent, is held in Railway Co. v. Depew, 40 Ohio St., 121: that, a pérson upon a railroad track may not rely upon a signal being given of the starting of a train, and that the expectation that, such signal will be given will not relieve such person from constant watchfulness for his-safety. Law applicable to the present case is held in C., C., C. & I. Ry. Co. v. Elliott, 28 Ohio St., 340, as-follows: “The omission to ring the bell or' sound the-whistle at public crossings is not of itself sufficient, ground to authorize a recovery, if the party, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the accident. What is such, contributory negligence as will defeat a recovery is. usually a question of mixed law and fact, to be determined by the jury from all the circumstances of the-case and under proper instructions from the court;,. but where the undisputed facts show that by the exercise of ordinary care a party might have avoided injury, he cannot recover.' It is the duty of a traveler upon the highway, when approaching a railroad crossing, to make use of his senses, to ascertain if there is a train in the vicinity; and if, Avhen in full possession of his faculties, he fails to see or hear anything, when, a prudent man, exercising his eyes and ears, with ordinary care, would have discovered a train in close proximity, and he is thereby injured, he is guilty of such negligence as will prevent a recovery.” Our case also in one aspect resembles Railroad Co. v. Skiles, 64 Ohio St., 458. It is there held that where a person Avithout looking or listening, steps upon a. railway track from a place of safety on a platform, immediately in front of and close to a backing switch engine and is injured, he is guilty of contributory negligence- and cannot recover.

The propositions here indicated are supported by a', great number of cases, some of which are here cited: Railroad Co. v. Crawford, 24 Ohio St., 631; Heaney v. L. I. R. R. Co., 112 N. Y., 122; Hoyt v. The City of Hudson, 41 Wis., 105; Bancroft v. B. & W. R. R. Co., 97 Mass., 275; McCrory Admx., v. C., M. & St. P. Ry. Co., 31 Fed. Rep., 531, opinion by Brewer, J.; D. & R. G. Co., v. Ryan, 17 Colo., 98; Mann v. R. & S. Y. Co., 128 Ind., 138; C., K. & W. R. R. Co. v. Fisher, 49 Kan., 460; Chase v. M. C. R. R. Co., 78 Me., 346; I. C. R. Co. v. Hall, 72 Ill., 222.

A number of cases in other states are cited which, with more or less force sustain the contention of plaintiff in error, bat the rule in Ohio, as we understand it, evidenced by the general trend of decisions, is in accord with the conclusions here indicated.

We are of opinion that the motion to direct a verdict for defendant should have been sustained. The .judgments below will therefore be reversed and judgment entered for plaintiff in error.

Reversed.

Burket, C. J., Davis, Shauck and Crew, JJ., •concur.


author: - Burnet, C. J.

text:
    The Merchants’ National Bank v. Wehrmann et al.

      A national bank cannot be a member of a partnership—Debtor of bank transferred shares in a partnership to said bank—Bank thereby became oivner of said shares but not a member of the partnership.

    1. A national bank, established under the act of congress providing for such banks, can not be a member of a partnership, and can not become liable as a partner.

      '■2. A customer of a national bank being largely indebted to the bank, and being in failing circumstances, and being the' owner of nine shares' in a partnership consisting of forty shares, each evidenced by a certificate transferable on the books of the partnership, transferred his nine shares to the bank to secure payment of his indebtedness, the bank becoming the owner of such shares. Held: That such transfer did not in legal effect, make said bank a partner, but a part owner in severalty of the property then owned by the partnership, and as such, liable for nine-' fortieth parts of the .debts and expenses incurred in purchasing, holding, handling, managing, improving, and disposing of, said property.
    (No. 8133
    Decided October 27, 1903.)
    Error to the Circuit Court of Hamilton county.
    The litigation in this case, had its origin in an agreement signed by some twenty-five persons, of which the following is a copy, omitting signatures: “We, the undersigned, in consideration of the mur, tual agreements herein contained, severally agree, as: follows: ,
    “First. That we will form a syndicate with a capital, stock of $320,000, divided into forty shares, of the par value of $8,000 each, and we will take the shares. as subscribed by us.
    “Second. With said capital stock it is agreed to purchase a certain tract of land lying in section No. 33, Columbia township, Hamilton county, Ohio, as per plat hereunto attached, said tract containing 160 acres, more or less, the purchase price for same to .be: $300,000, payable $100,000 cash, and the balance: ($200,000) on ten-year four per cent, ground, rent,with privilege of purchase at any time, interest, pay-: able quarterly. -
    “Third. The balance of said capital stock, amounting to $20,000, shall be used for the improvement and development of said land, and for the expenses incidental to the management, control and sale thereof.
    “Fourth. The shares of said stock are to be paid for as follows: The sum of $300 per share immediately on signing this agreement; the sum of $2,300 immediately after all shares are taken; the sum of $400 in sixty days after all shares are taken; the balanee of $5,000 on each share to be paid out of the proceeds of lots.
    “Fifth. After the cost of land, including the cost of making streets, advertising, etc., etc., shall have been paid out of the receipts for the sale of lots, then, the receipts will be considered net profits, and shall be divided among the shareholders equally, share and share alike. ■
    “Sixth. Subscriptions to be binding only in case all the forty shares are taken within fifteen days from date hereof. Otherwise, said first payment of $300’ on each share to be returned.
    “Cincinnati, Ohio, January 25, 1889.”
    The full number of forty shares was subscribed, and certificates of shares in the following form were issued to the subscribers respectively:
    “the elsmere syndicate.
    “Investment, $320,000. Paid up, $120,000.
    “No.--. Non-assessable.
    “This is to certify that--is the owner of a 1-40 interest in The Elsmere Syndicate. Transferable in person or by attorney upon the books of the syndicate at its office in the city of Cincinnati, upon, the surrender of this certificate.
    “Witness our hands this-day of-—.

      U ____
    u__
    «____
    “Trustees.
    “Countersigned.
    U___
    “Secretary and Treasurer.
    “For value received,-sells to-the interest above mentioned, and authorizes-, at-to.rney, to transfer the same on the books of the company.
    “In presence of
    U___
    U__??
    . One P. B. McParlan subscribed. for certain shares and purchased others, so that he owned nine shares; and being largely indebted to The Merchants’ National Bank, he transferred said nine shares to said bank to secure said indebtedness, about the month of January, 1892, which transfer was, made to “W. W. Brown, trustee,” said Brown being cashier of said bank. The bank contends that the transfer to Mr. Brown was as collateral security for the debt; while others claim that the transfer made the bank the owner of the shares.
    The syndicate was organized, by-laws adopted, officers elected, and the powers of the trustees defined, which included the platting of said property, the leasing and selling thereof, to pay the purchase money and ground rents, and to pay the balance of the funds to the holders of said certificates in proportion to the number of shares held by each.
    The syndicate became insolvent in the year 1896, and the persons from whom the land had been obtained foreclosed, and purchased the land, and thereby the syndicate was prevented from further carrying on its business.
    After this transfer of the nine shares to Mr. Brown, trustee, the syndicate became largely indebted for improvements, ground rent, interest, and other items intended for the betterment of the property, and its conversion into money.
    About July, 1897, an action was commenced by William F. Wehrmann against the parties interested in said syndicate, including W. W. Brown, trustee, and the said bank, seeking to hold the owners of said certificates as partners, and for an accounting. Issues were made up in which said Brown and said bank denied that they were at any time partners in said syndicate, and averring that said nine shares were held as collateral only.
    The case was referred to a master, - and he made his report, arid the case was taken to the circuit court on appeal, and there tried upon the report of said master in the coinmon pleas, and exceptions thereto, and a finding of facts and conclusions of law separately, were made by the circuit court.
    The facts found, going to show the liability of said bank, are as follows:
    “First. That what has been called herein the Elsmere Syndicate was a partnership formed for the purpose of taking the title by lease, with privilege of purchase, of certain lands situated near Norwood, in this county, owned by George W. B. Cleneay and Joseph S. Oleneay, which was under lease to one John Woltz, who quitclaimed his title to Myron A. Spencer, Frank B. McFarlan and James McArdle, Jr., as trustees for said syndicate, on or about the sixteenth day of February, 1889. And that the business of the said syndicate was to subdivide said land into lots, lay out and improve streets, and sell said lots for the profit- of the members of the syndicate. ■
    “Second. That the interests of the partners in said partnership were represented by certificates of equal interest or shares, forty in number, numbered consecutively from one to forty and transferable from hand to hand on the books of the said company.
    “Third. That the partnership, became insolvent, and it became impossible to carry on further the said business, and. said partnership was deprived of what remained of said leasehold premises by foreclosure and sale of same, and that it became necessary to file the petition in the court below to wind up the affairs and business of the said partnership, to realize the assets, if any, and to compel the partners to liquidate the indebtedness thereof.
    “Fourth. That on June 15, 1896, the interests in said partnership were held by the following named persons, in the proportion set opposite their names, to-wit:
    Myron A. Spencer................... Two shares
    Wm. F. Wehrmann estate, Theresa Ji Wehrmann, executrix............. Five shares
    Merchants National Bank of Cincinnati, Ohio........................ Nine shares
    James Armstrong’s estate, James C. Armstrong, Floris A. Sackett and Isaac B. Matson, executors......... Three shares
    Moses Krohn....................... One share
    Leopold Feiss...................... One share
    Benjamin Pritz ..................<. One share
    Peter Gr. Thompson................. One share
    Joseph Taylor...................... One share
    Richard Hempel.................... Three shares
    William Bell ....................... Eight shares
    W. B. Kennedy..................... Two shares
    J. Fred. Woltz..................... One share
    James McArdlé’s estate, Margaret Mc-Ardle, administratrix............. One share
    Peter J. Dunn’s estate, Ella C. Donnell, executrix.................... One share
    being forty in all. That the above named William Bell and W. B. Kennedy are residents of Canada, and have not and could not have been served with process herein, and are not subject to the jurisdiction of the court- That the shares standing in the name of Richard Hempel were not his property, and he is not liable thereon, but one of said shares was conveyed to him by John Brokamp, party hereto, and one of the original subscribers to said syndicate, who is liable thereon. That the share standing in the name of Adam T. Voll, No. 39, was one of the five shares belonging to William F. Wehrmann, and that said Wehrmann vras the owner thereof, and that his estate is liable for all assessments thereon, including the amount already paid up by Adam T. Voll, as hereinafter mentioned. That Myron A. Spencer and J. Fred. Woltz, above named, and Peter J. Dunn’s estate are insolvent and nothing can be made from them. That the others named, including John Brokamp, are liable for the debts of the said partnership and the costs of this case, in proportion to the number of shares held by each respectively, but the right to contribution against said Myron A. Spencer and J. Fred. Woltz and Peter J. Dunn’s estate in favor of the other partners is preserved. That the shares standing in the name of W. W. Brown, trustee, are the shares of the Merchants National Bank, originally held by it as collateral, but transferred to it as owner when they were transferred to said Brown, that when so transferred the notes for which they had been held as ■collateral were surrendered, and the said shares were entered on the books of the bank as owned by the bank, and so reported to the United States government, and the bank, through its vice-president, took part in the management of the said syndicate and in the effort to preserve its property from sacrifice and loss, and all this was done with the knowledge and acquiesence of the board of directors of said bank.”
    The court found the indebtedness to different persons, in detail, and then found that there are only twenty-three solvent shareholders, and charges them, including said bank, with the payment of the whole indebtedness, and adjudges that in case of the subsequent insolvency of any of said shareholders before payment, that the deficiency thus caused shall be made up by the remaining solvent shareholders. The decree against the bank is for over $17,000. .The plaintiff having died, his executrix carried on the litigation.
    A motion for a new trial was overruled, and bill of exceptions taken by the bank. Proper and full exceptions were saved throughout.
    A petition in error was filed in this court by the bank, seeking to reverse the judgment of the circuit court.

      Mr. W. G. Herron and Messrs. Herron, Gat eh & Herron, for plaintiff in error, cited and commented upon the following authorities:

      Thompson v. Bank, 111 U. S., 529; Cook v. Penrhyn Slate Co., 36 Ohio St., 135; Shumaker on Partnership, secs. 13, 14, 15; Cox v. Delano, 3 Dev. (N. C.), 90; Cox v. Hickman, 8 H. L. Cas., 268; Harvey v. Childs, 28 Ohio St., 322; March & Co. v. The Court of Wards, L. R., 4, P. C., 419; Badeley v. Bank, 38 Ch. Div., 238; In re Young ex parte Jones, 2 Q. B., 484; Smelting Co. v. Smith, 13 R. I., 34; Wehrman v. McFarlan, 9 Dec., 400; 6 N. P., 333; 2 Lindley on Partnership (Am. ed.), 757; Hunnewell v. Canning Co., 53 Mo. App., 245; Exporting Co. v. Bank, Wright, 252; Marshall v. Stewart, 17 Ohio, 356; Randall v. Turner, 17 Ohio St., 269; Slutz v. Desenberg, 28 Ohio St., 371;
      Bank v. Chandelier Co., 9 Circ. Dec., 807; 17 C. C. R., 443; Boynton v. Woodbury, 101 Mass., 346; Williams v. Patrick, 177 Mass., 160; Robinson v. Bank, 180 U. S., 295; Higgins v. Deposit Co., 108 Fed. Rep., 475; Jones on Pledges, secs. 153, 154, 155, 156; McMahon v; Macy, 51 N. Y., 155; Brick v. Brick, 98 U. S., 514; Burgess v. Seligman, 107 U. S., 20; Williams v. Bank, 85 Fed., 376; Gins v. Stumph, 73 Ind., 209; Bank v. Railroad Co., 62 Ohio St., 564; Mullenkops v. Baumgardner, 11 Circ. Dec., 655; 21 C. C. R., 591, at 604; Bank v. Armstrong, 152 U. S., 346; Scott v. Deweese, 181 U. S., 218; McCormick v. Bank, 165 U. S., 538; Bank v. Kennedy, 167 U. S., 362; Bank v. Hawkins, 174 U. S., 364; Cockrill v. Abeles, 86 Fed. Rep., 505; Cooper v. Hill, 94 Fed. Rep., 582; Bank v. Pirie, 82 Fed. Rep., 799; Bowen v. Bank, 94 Fed. Rep., 927; Blets v. Bank, 55 S. W. Rep., 697.

      Messrs. Matthews & Merrell, Mr. C. B. Matthews and Mr. Jacob Shroder, for defendants in error, cited and commented npon the following áuthorities:

      Cox v. Hickman, 8 H. L. Cas., 268; March & Co. v. The Court of Wards, L. R., 4, P. C., 419; Pooley v. Driver, Ames Cas., par. 87; Moore v. Davis, Ames Cas., 105; Farnum v. Patch, 60 N. H., 294; Bartholomew v. Bentley, 15 Ohio, 659; Cox v. Hickman, 6 H. L. Cas., 268; Pullen v. Sharpe, 1 L. R., 112; Eastman v. Clark, 53 N. H., 276; Wood v. Vallette, 7 Ohio St., 172; Leggett v. Hyde, 58 N. Y., 272; Insurance Co. v. Ross, 29 Ohio St., 429; McFadden v. Leeka, 48 Ohio St., 513; Batty v. Adams Co., 16 Neb., 44; Horner v. Meyers, 4 Dec., 404; 29 W. L. B., 403; Robbins v. Butler, 24 Ill., 387; Ludlow v. Cooper, 4 Ohio St., 1; Yeoman v. Lasley, 40 Ohio St., 190; Hulett v. Fairbanks, 40 Ohio St., 233; Claggett v. Kilbourne, 1 Bl., 346; Chester v. Dick

      erson, 54 N. Y., 1; Wadsworth v. Duncan, 164 Ill., 360; Wells v. Wilson, 3 Ohio, 425; Rianhard v. Hovey, 13 Ohio, 300; Jones v. Clark, 42 Cal., 180; Lindley on Partnership, 363, sec. 5, on Transfer of Stores; Morse on Banks and Banking,, secs. 60, 78; Holmes v. Boyd, 90 Ind., 332; McCraith v. Bank, 104 N. Y., 414; Mapes v. Scott, 88 Ill., 352; Zantzinger v. Qunton, 19 Wall., 32; Roebling v. Bank, 30 Fed. Rep., 744; Reynolds v. Simpson, 74 Ga., 454; Bank v. Wall Paper Co., 77 Fed. Rep., 85; Butler v. Cockrill, 73 Fed. Rep., 945; Cockerill v. Abeles, 86 Fed. Rep., 505; Bank v. Bank, 92 U. S., 122;, Bank v. Case, 99 U. S., 629; Bank v. Kennedy, 167 U. S., 362; Scott v. Deweese, 181 U. S., 218; In re Asiatic Banking Corporation, L. R., 4, Ch. App. Cas., 252; Beardsley v. Foot, 14 Ohio St., 414; Knight v. Whiffen, L. R., 5 Q. B., 660; Mitchell, Lessee, v. Ryan, 3 Ohio St., 377; Runkle v. Burnham, 153 U. S., 225; Holdane v. Harney, 4 Burr., 2484; Graves v. United States, 150 U. S., 121; Robinson v. Bank, 180 U. S., 295; Bank v. Matthews, 98 U. S., 629; Royal Bank of India’s Case, L. R., 4, Ch. App. Cas., 252; Pauly v. Loan & Trust Co., 165 U. S., 611; Bank v. Hawkins,. 174 U. S., 364; Bank v. Whitney, 103 U. S., 99; Thompson v. Bank, 146 U. S., 240.
   - Burnet, C. J.

The Merchants National Bank, of Cincinnati, is a corporation organized under the national banking laws of the United States, and The Elsmere Syndicate was a partnership consisting of forty shares, each partner holding one or more shares, and each share evidenced by a certificate as shown, in the foregoing statement of facts, and which, certificates were transferable on the books of the syndicate, and such transfers were intended to make the transferee a partner in the syndicate instead of the transferor, without a dissolution of the partnership.

The circuit court finds that the bank became owner by transfer of nine shares of this syndicate or partnership, which shares were taken by the bank to secure the payment of a large indebtedness owing to said bank for loans by it made to one of its customers in the usual course of business.

The bank in accepting said transfer evidently regarded it as a, collateral, but it so treated the shares, and so transacted the business as to said shares, that the circuit court found that the bank became the -owner of the shares, and there Avas evidence Avarrant.ing such finding. The case must, therefore, be determined upon the theory that the bank held the •shares as owner and not merely as collateral; the purpose of such ownership, hoAvever, being to secure the ultimate payment of said indebtedness out of the pro-needs of said shares, and to that end it was necessary that the property of said syndicate should be put into ;such condition as to yield the most money, and this is Avhat the trustees of the syndicate attempted to do; and in so doing debts were incurred, Avhieh the syndicate Avas unable to pay, and after all its property had been consumed in paying said debts, a large debt still remained.

The restrictions contained in our banking laAvs are for the purpose of securing the solvency and stability -of the banks; and the statutes should be so construed and the law administered as to reasonably bring about that end. The wealth and prosperity of the people •depend, to a large extent, upon the soundness of the banks and the safety of the currency. The purpose of the government is to foster and encourage sound banking and preserve a safe currency; and it therefore allows national banks to collect claims due them, even though a statute or a rule of law or equity may have been infringed in the incurring of the debt. The punishment for such infringement must come from the federal authorities, in a proceeding instituted for that purpose, and not by a denial by the courts of the right ■of collection, as a punishment.

It is largely for the purpose of maintaining the solvency- of banks that a national bank is allowed to collect loans secured by mortgage in violation of section. 5137, U. S. Revised Statutes. National Bank v. Matthews, 98 U. S., 621; National Bank v. Whitney, 103 U. S., 99.

It is to the same end that the solvent shareholders in a national bank can not be compelled to stand good for the individual liability of the insolvent ones, and that the loss caused by such insolvency must be borne by the creditors of the bank. United States v. Knox, 102 U. S., 422; section 5151, U. S. Revised Statutes.

Hence it is, that while banks are hedged about with restrictive laws as to making loans and discounts so as to incur no bad debts, the most liberal provisions are made for securing debts already incurred, by the taking of such collateral as may seem best in the judgment of the officers of the bank. Such collateral may become the property of the bank,' in course of enforcing the security. And while a national bank can not lawfully purchase and hold shares in a corporation as an investment, California Bank v. Kennedy, 167 U. S., 362, it may accept the stock of a corporation as collateral security for a loan, and may thereafter in realizing upon the collateral, become the owner thereof, and liable for individual liability the same as any other stockholder. National Bank v. Case, 99 U. S., 628. This case seems to have been overruled in Scott v. Deweese, 181 U. S., 217, where-the court say, at the close of the opinion: “Whether' a national bank may not be deemed a shareholder, within the meaning of section 5151, if it holds shares, of another bank as security for previous indebtedness, is a question suggested in former cases, but not decided, and upon which in this case, no opinion need be expressed.”

But conceding that a national bank may take shares, in another bank as collateral security for a new loan, or to secure the payment of an old one, and that it may become the owner of such shares in attempting to realize on such collateral, and that it may thereafter ■ be liable to creditors on its individual liability as such shareholder, yet that falls far short of holding a national bank liable as a partner in a partnership, and liable as such partner for, not only its own share of' the debts of the firm, but also, the debts of its co-partners. The individual liability of a holder of shares in a national bank is in its nature several and not joint (United States v. Knox, 102 U. S., 422), while the liability of a partner for partnership debts • is, as to creditors, usually held to be joint, but some-cases hold it to be joint and several.

The individual liability is an inseparable incident to national bank shares, for which the lawful holder is liable; but this liability is his own debt, and attaches to a specific several article of his property—the share of stock—and is therefore limited, and can not exceed the face value of the stock.- But in the case of' shares in a partnership, the liability of a partner is not for a specific amount adhering to his share as an incident and limited to a certain amount, but the only limitation is the whole indebtedness of the firm, and. which in many cases would far exceed the entire resources of the hank, and drive it into insolvency. The purpose of allowing a national bank to take collateral security is to enhance its solvency, and not to permit it to enter into wild speculations as a partner under the pretext of enforcing its rights as a pledgee or owner.

“It is settled that the United States statutes relative to national banks constitute the measure of the authority of such corporations, and that they cannot rightfully exercise any powers except those expressly granted, or which are incidental to carrying on the business for; which- they are established.” Logan County Bank v. Townsend, 139 U. S., 67, 73; California Bank v. Kennedy, 167 U. S., 362, 366.

To become a member of a partnership in any manner or for any purpose, is not incidental to carrying on the business for which national banks are established, and is certainly not expressly granted. The power therefore does not exist/ The liabilities for which a national bank must respond, are such only as are created or incurred by its officers, acting in the capacity of officers of the bank alone, and not in connection with other trustees or officers of other companies. Were it otherwise the other trustees or officers, might outnumber the officers of the bank, and impose burdens, on the bank which would ruin it; and thus the bank would be controlled, not by its officers, but, by outsiders. The officers of a bank cannot delegate their powers to others. It is therefore clear that a national bank can not be a partner in a copartnership, and can not incur a partnership liability.

The same has been held as to corporations in this state. Geurinck v. Alcott, 66 Ohio St., 94. The first subdivision of the syllabus was omitted by mistake of printer, but is found in the head note, and also.-in: the index, and is as follows: “A corporation cannot be a member of a partnership.”

But it is contended, that Avhile a national bank cannot become a partner generally, that where it becomes' the owner of a share in an existing partnership, like-this Elsmere Syndicate, that in effect it becomes a. partner, and liable as such. That begs the question..' If it had the power to become a partner, such might: be the case; but not having the power, it cannot gO' beyond its powers, and cannot by any act make itself a partner, and cannot incur a partnership liability.

Cases are cited in which a bank has taken some' specific piece of property, as a ship for instance, to secure a debt, and has been held liable for the expenses of managing or converting such property; but. such expenses were incurred by the bank, and were its individual debt, and not the debt of a partnership. With such cases we fully agree, but in those cases it does not appear that the bank was hampered by a lack of poAver, as is the case under our national banking act Royal Bank of India’s Case, L. R., 4, Ch. App. Cas., 252.

Not having the power to enter into such partnership, it is well settled that the bank may plead such want of power to defeat an attempt to hold it as such partner^ California Bank v. Kennedy, 167 U. S., 362.

It is further urged that the bank partly realized on some of these shares, and held itself out ais a partner, and that it is therefore estopped from now claiming that it was not such partner.

That the realizing on stocks by receiving dividends does not create an estoppel, Avas held in the above cited case of Bank v. Kennedy, 167 U. S., 371. In the case of Scott v. Deweese, 181 U. S., 217, the court, near the close of the opinion hold: “Of the powers! of a national bank under the statutes providing for their creation, every one must take notice.”

Every one is therefore chargeable with knowledge' that a national bank can not be a partner, and therefore this bank could not hold itself out as being that, which in. law it could not be, and its acts in that behalf could deceive no one, as no one could in law rely upon such acts. One can not rely upon a representation which he knows to be false or impossible.

The bank having become the owner of these nine shares, and not having the power to become a partner, it became in legal effect, a part owner of the property of the syndicate, which OAvnership Avas in its nature several, and the bank, through its trustee, having managed this several interest in connection with the trustees of the other shares as to their interests, the bank, became and is liable for its said share of the expenses of purchasing, managing, handling, holding, improving, and disposing of the property. The bank is thus liable for nine-fortieth parts of the debts and expenses remaining after applying the proceeds of the property upon the indebtedness. •

The record does not. clearly furnish the data from AA'hich this amount can be ascertained by this court,, and therefore the judgment against the plaintiff in error will be reversed, and the cause remanded to the circuit court with instructions to ascertain what nine-fortieth parts of said debts and expenses amount to, and render judgment against said bank for that sum, and also for nine-fortieth parts of the costs.

Judgment reversed and cause remanded.

Spear, Davis, Shaucic and Price, JJ., concur.