text:
    The State, ex rel. Turner, Attorney General, v. Employers’ Liability Assurance Corporation, Ltd., of London, Eng.

      Workmen’s compensation and employers’ liability — Insurance authorized — Section 9510, General Code — Contracts to indemnify employers — Section 1465-101, General Code (103 O. L., 91)— Provisions to be incorporated in policies — Employers compensating employes direct — Section 1465-69, General Code (103 O. L., 80) — Insurance prohibited — Wilful act or failure to observe lawful requirements — Employers not contributing to state fund —And employers not authorized to compensate direct.

    (No. 15089
    Decided January 31, 1917.)
    In Quo Warranto.

      Mr. Edward C. Turner, attorney general; Mr. Timothy S. Hogan; Mr. George B. Okey; Mr. Hanby R. Jones and Mr. Eugene Carlin, for relator.

      Messrs. Worthington, Strong & Stettinius, for respondent.

      Mr. Wallace D. Yaple; Mr. Daniel J. Ryan; Messrs. McGhee, Davis & Boulger; Mr. S. H. Tolies; Messrs. Squire, Sanders & Dempsey; Mr. H. J. Crawford and Mr. Ernest Angelí, amici curiae,
   By the Court.

Section 54 of the act of the general assembly, passed February 26, 1913 (103 O. L., 72, 91), entitled “An act to further define the powers, duties and jurisdiction of the state liability board of awards with reference to the collection, maintenance and disbursement of the state insurance fund for the benefit of injured, and the dependents of killed employes and requiring the contribution thereto by employers, and to repeal,” etc., is not in conflict with, nor does it repeal by implication, Section 9510, General Code, but on the contrary is intended to and does define, limit, and declare the nature and extent of the contract of indemnity that may be written under the provisions of said Section 9510, in favor of employers of more than five employes, in the following particulars, to-wit:

(a) Every such contract of indemnity of an employer for loss or damage on. account of injury of an employe by accidental means or on account of the negligence of such employer or such employer’s officer, agent, or servant, shall contain a specific provision, as a part of its terms, for the payment to such injured employe “of such amounts for medical, nurse and hospital services and medicines, and such compensation as is provided by this act for injured employes; and in the event of death shall pay such amounts as are herein provided for funeral expenses and for compensation to the dependents of those partially dependent upon such employe.”

This provision of the contract has reference only to cases of injury where the injured employe elects to accept Compensation for his injury directly from his employer according to the standard fixed in Section 22 of the workmen’s compensation act.

(b) The contract of indemnity shall not contain any agreement to indemnify an employer for any civil liability for or on account of the injury to his employe by the wilful act of such employer, or any of such employer’s officers or agents, or the failure of such employer, his officers or agents, to observe any lawful requirements for the safety of employes.

This provision of the contract has exclusive reference to cases of injury where the injured employe does not elect to receive as compensation for his injury either the judgment or award of the industrial commission sitting as a board of awards, or from his employer direct, but elects to and does exercise the right to enforce his cause of action against his employer in the courts.

(c) No contract of indemnity shall be written in behalf of an employer of five or more employes for loss or damage, nor an agreement to indemnify an employer for any civil liability, on account of an injury of an employe by accidental means or on account of the negligence of such employer, his officers, agents or servants, whether the negligence be that of the wilful act, or failure to comply with lawful requirements of the safety of employes, or negligence of any other kind or character, if such employer is not a contributor to the compensation fund, or has not legally exercised the option of carrying his own insurance under Section 22 of the act.

Demurrer to answer sustained. Judgment of ouster as to exercise of the franchise of writing indemnity insurance policies to employers other than those permitted by opinion of the court. Operation of ouster will be suspended for one hundred days in order to permit respondent to conform to this holding.

Judgment of ouster.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Matthias, J.

license: Public Domain

text:
    McVeigh et al. v. Fetterman et al.

      Wills — Statutory period for contest — Service by publication — Verdict and judgment — May not be opened up and retrial had— After expiration of limitation, when.

    1. The right is conferred by statute upon any person interested in a will or codicil admitted to probate to institute an action to contest its validity, but the right thus granted is subject to the condition imposed that it shall be exercised within the period prescribed by statute.
    2. Where, in an action to contest a will; all necessary parties having been joined and duly served with process either in person or by publication, a verdict and judgment sustaining the will were entered, a party defendant though served only by publication, upon application filed subsequent to the expiration of the period prescribed by statute for the contest of wills, is not entitled to have such judgment opened up and the issue again made and tried as to the validity of said will.
    (No. 15260
    Decided February 13, 1917.)
    Error to the Court of Appeals of Cuyahoga county.
    The facts are stated in the opinion.

      Messrs. Calfee & Fogg and Mr. Walter C. Ong, for plaintiffs in error.

      Messrs. Howell, Roberts & Duncan and Messrs. Huggett & Collins, for defendants in error.
   Matthias, J.

The defendant in error, Mary Fetterman, on May 21, 1915, filed in the court of common pleas of Cuyahoga county her application to vacate the finding and judgment of that court, entered December 27, 1912, sustaining the will of LaFayette Kickland. The action to contest said will had been instituted November 22, 1911, the defendant in error having been made a party and served by publication.

The question presented in this case is whether Section 11632, General Code, applies to a proceeding to contest a will in such way as to authorize the order and action sought by the defendant in error. The common pleas court held that it does not, and denied the application of the defendant in error, while the court of appeals held that it does so apply and ordered that the judgment theretofore entered in the common pleas court be opened up, the case reinstated on the docket, and the defendant in error permitted to file her proffered answer, wherein she seeks to have set aside the instrument probated as the last will and testament of LaFayette Kickland.

Section 11632, General Code, permits a party against whom a judgment or order has been rendered without other service than by publication in a newspaper, to have the judgment opened up and be let in to defend, within five years after the date of such judgment or order.

The disposition of property by will, proceedings in probation thereof, and the right to institute and maintain an action to contest a will duly probated, are all governed and controlled by statute.

Section 12079, General Code, authorizes any person interested in a will or codicil admitted to probate, to contest its validity by a civil action in the common pleas court of the county in which the will is probated.

Section 12087, General Code, requires that an action to contest a will or codicil shall be brought within one year (at the time this will was probated, two years) after its admission to probate. This provision contains a saving clause in favor of persons within the age of minority, of unsound mind, or imprisoned, and persons in these classes may bring such action within one year (formerly two years) after the removal of the disability. ■

Section 10519, General Code, provides that if it appears that a will offered for probate was duly attested and executed, and that the testator at the time of executing it was of full age, .of sound mind and memory, and not under restraint, the court shall admit the will to probate.

Section 10531, General Code, at the time of the probation of the will in question, provided as follows :

“If, within two years after probate had, no person interested appears and contests the validity of the will, the probate shall be forever binding, saving, however, to infants, and persons of unsound mind, or in captivity, the like period after the respective disabilities are removed.”

Under the mandatory provisions of this section a will duly probated is thereby fully established; and, under the clear and unequivocal terms of the statute above quoted, it shall be forever binding unless set aside as a result of proceedings instituted in the manner and within the time required by statute.

No right exists to maintain an action to contest a will except as it is specifically provided by statute, and the right thus conferred is subject to the conditions and limitations imposed. The right granted and the condition imposed go together; the one cannot be enjoyed without the restrictions and limitations o± the other.

As very pertinently stated in the opinion of the court in Medell v. Snyder, 71 Kans., 590, 594: “Therefore, the jurisdiction of the district court under the wills act is an innovation of purely statutory origin. Likewise, the right of a party to invoke such jurisdiction is purely a statutory creation. One of the conditions attached to the exercise of the jurisdiction thus provided for, and the right to call it into exercise, is that proceedings be instituted within two years. Time is of the essence of the power and the right, and lapse of time operates to extinguish both, rather than as a mere bar to a remedy.”

The decision of this court in the case of The Pittsburg, Cincinnati & St. Louis Ry. Co. v. Hine, Admx., 25 Ohio St., 629, similarly construes a provision somewhat analogous contained in a statute authorizing an action for damages sustained by reason of death caused by a wrongful act.

It is there held that “under the ‘act requiring compensation’ for causing death by wrongful act, neglect, or default (S. & C. 1139, 1140), which gave a right of action, provided such action should be commenced within two years after the death of such deceased person, the proviso is a condition qualifying the right of action, and not a mere limitation on the remedy.”

The provisions of the statute above cited relating to an action to contest a will clearly constitute more than a mere limitation upon the time of instituting the action, for it is expressly provided that a will duly probated and not contested within two years shall be forever binding. That period had long passed when the defendant in error filed her application in this case. In our opinion no weight whatever should be accorded the fact that an action had previously been instituted to contest such will, resulting in a judgment sustaining it. Surely the defendant in error, who now seeks opportunity to attack the validity of the same will, though by way of a so-called answer in the former proceeding, is in no different or better situation than if no such action had previously been instituted; nor can she have any greater rights than if she had not been made a party at all. The rights of one not a party “stand wholly unaffected by the proceeding.” (Holt et al. v. Lamb et al., 17 Ohio St., 375.) The only right the defendant in error possessed as an heir of the testator was the right conferred by statute to maintain an action to contest said will, provided she proceeded within the time specified. She has not been deprived of that right; but she failed to assert it within the prescribed period and the probate of the will became “forever binding.”

This view is not antagonistic to the decision of the court in Bradford v. Andrews et al., 20 Ohio St., 208, or in Sears v. Stinehelfer, 89 Ohio St., 163. In the former case the court held that where an action to contest a will was brought within the statutory period the plaintiff could not defeat the contest by dismissing his petition, notwithstanding some of the parties were not'brought into the case until after the period of limitation had expired; but the court in announcing its conclusion in that case directs attention to the very significant fact disclosed by the record that a cross-petition also challenging the validity of the will involved in that action was filed before the period of limitation had expired or the original petition had been dismissed. The case was pending, and the court held merely that the action should proceed to trial and judgment upon the cross-petition and answers thereto.

In the case of Sears v. Stinehelfer, supra, it appears that Stinehelfer, who had purchased of the widow of testator a tract of land devised to her by will duly probated, was not made a party to an action thereafter brought to contest said will, and which resulted in the will being set aside. Subsequently, but within what period after the will was probated the record does not disclose, Stinehelfer filed his petition in the case referred to setting up the facts above stated, with the further allegation that the judgment setting aside the will was procured by fraud and collusion upon the part of the widow and other heirs, the widow offering no testimony to support the will and consenting that it be set aside. Stinehelfer sought to have the judgment opened up and the issue as to the validity of the will made and determined. This court affirmed the judgment of the court of appeals overruling a demurrer to the petition. We are unable, however, to see how the position of the defendant in error in this case is supported by the ruling of the court in that case. At thé close of the opinion the court say: “If Stinehelfer is able to make it appear that the paper was the valid last will of the decedent, he is entitled to the opportunity of doing so.” But it does not follow that one not made a party, or, if made a party, served by publication, is entitled to an opportunity, after the period prescribed by statute has elapsed, to make it appear that the instrument in question is not the valid last will of the decedent. In the above case opportunity was sought to sustain a will set aside as a result of fraud and collusion, while in the instant case an opportunity is sought to challenge the validity of a will which under the law has become “forever binding,” a very vital distinction.

It is argued, however, that the rights of the defendant in error in this case were as effectively preserved by the provisions of Section 11632, General Code, as were the rights of Stinehelfer by the provisions of subdivision 4 of Section 11631. As previously pointed out, the defendant in error had been deprived of no right. The right which she possessed to contest the will was unaffected by the judgment entered, but expired with the lapse of time.

, Section 11632 is a remedial provision, enacted to prevent injustice and to furnish relief to those who would otherwise be wronged. It surely was not calculated to in any wise affect the statutes of repose, nor can it be construed to extend the period for the contest of a will, expressly limited by Section 12087. If it be so construed an additional period of five years of delay and uncertainty would be imposed upon every estate, the settlement of which is dependent upon a will, where any party interested therein, no matter how remotely, is served by publication. Section 12087 contains an enumeration of the exceptions extending the time for contesting a will, and all others should be deemed excluded. Exceptions in such statutes are strictly construed, and cannot be enlarged even from considerations of apparent hardship or inconvenience. Powell et al. v. Koehler et al., 52 Ohio St., 103.

Section 12087 formerly included within its saving clause “persons absent from the state.” By amendment in 1898 (93 O. L., 81) that exception was dropped from the section. In view of the fact that nonresidents of the state ■ are served by publication, a holding by the court that Section 11632 applies to nonresident heirs in will-contest cases, and grants to them an extension of time to contest a will, would completely annul the action of the legislature amending Section 12087; for the clause dropped from that section would thus be reinserted by force of judicial construction. We may well adopt and apply here the language used by Justice Bradley in Case of Broderick’s Will, 21 Wall., 503: “The public interest requires that the estates of deceased persons, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; * * * and that the result attained should be firm and perpetual.”

This policy of facilitating the settlement of estates has been clearly manifested by legislative enactment in this state, and the statutes upon that subject should, in so far as possible, be so construed as to further that policy and fully accomplish the obvious purpose of their enactment.

For the reasons stated, the judgment of the court of appeals is reversed and that of the common pleas affirmed.

Judgment reversed.

Nichols, C. J., Wanamaker, Newman, Jones, Johnson and Donahue, JJ., concur.


author: Newman, J.

text:
    Robinson v. Wagner, Guardian.

      Guardianship — Termination—Section iioio, General Code — Application by ward in probate court — Appeal to common pleas court — Error proceedings in court of appeals — 'Sections 11247 and 11249, General Code.

    1. An imbecile ward may, under Section 11010, General Code, file an application or motion in the probate court for a termination of the guardianship upon the ground that he has been restored to reason, or that the letters of guardianship have been improperly issued, and an appeal will lie to the court of common pleas from the order of the probate court made upon the hearing of such motion.
    2. Where upon the hearing of the cause in the court of common pleas on appeal, judgment is rendered against the imbecile ward, he may in his own name file a petition in error in the court of appeals to have such judgment reviewed.
    (No. 15287
    Decided February 13, 1917.)
    Error to the Court of Appeals of Knox county.

      Plaintiff in error, Charity Ann Robinson, filed an application .in the probate court of Knox county in which she asked that the guardianship over her person and estate be terminated. Upon the hearing of this application, William PI. Wagner, her guardian, and the next of kin of said ward being present, the probate court found from the evidence that she had been restored to reason and ordered that the guardianship terminate. The guardian appealed from this order to the court of common pleas. On motion of plaintiff in error the appeal was dismissed upon the ground that no bond had been filed by the appellant. Error was prosecuted to the court of appeals by the guardian, and the judgment of the court of common pleas dismissing the appeal was reversed. The cause was remanded to the court of common pleas where the same was heard upon the evidence and the court refused to terminate the guardianship. Thereupon plaintiff in error filed a petition in error in the court of appeals. On motion of the guardian the petition in error was dismissed upon the ground that the ward had no right to institute a proceeding in error. Upon her application the court of appeals was directed to certify its record to this court.

      Mr. David B. Rawlins; Mr. S. M. Crouch and Mr. F. O. Levering, for plaintiff in error.

      Mr. L. C. Stillwell and Mr. Robert L. Carr, for defendant in error.
   Newman, J.

The only question presented here is whether plaintiff in error had the right to file a petition in error in the court of appeals. Section 11010, General Code, is as follows: “When the probate judge is satisfied that an idiot, imbecile or lunatic, or a person as to whom guardianship has been granted as such, is restored to reason, or that letters of guardianship have been improperly-issued, he shall make an entry upon the journal that such guardianship terminate. Thereupon it shall cease, and the accounts of the guardian be settled by the court.” The method of invoking the action of the probate court under this section is not defined. It is conceded, however, that the “restoration of reason” may be brought to the attention of the court by the ward. In the case of Hiett v. Nebergall, 45 Ohio St., 702, the imbecile ward filed a motion in the probate court in his own name asking for a termination of the guardianship. This court held that an appeal would lie from an order of a probate court overruling a motion of an imbecile ward to terminate the guardianship uppn the grounds (1) that letters of guardianship were in the first instance improperly issued, and (2) that if he was an imbecile at the time such letters were issued he has since been fully restored to reason. The court in that case recognized the right of the imbecile ward to institute the proceeding in the probate court in his own name and also his right to an appeal.

No question is made as to the right of plaintiff in error to commence the proceeding in the instant case and appeal to the court of common pleas if the probate court refused, to terminate the guardianship. But it is said that a proceeding in error being a new and independent proceeding, Sections 11247 and. 11249, General Code, apply, and the petition in error could not be filed by the ward in the court of appeals. Section 11247 provides that the action of an insane person must be brought by his guardian, and its provisions clearly cannot apply to a proceeding under Section 11010 for termination of the guardianship, where the guardian himself is an adverse party; nor does Section 11249, providing that the defense of an insane person must be made by his legally appointed guardian, etc., relate to the proceeding in question here, where the imbecile ward is not making a defense but is asking affirmative relief. Again, if these two sections apply to a proceeding in error, they apply with equal force to the institution of the original proceeding in the. probate court, which concededly can be at the instance of and in the name of the ward.

Although defendant in error in this proceeding prosecuted error to the court of appeals and the court reversed the judgment of the court of common pleas in dismissing his appeal, yet his counsel urge here that when the matter has been adjudicated in the court of common pleas on appeal the proceeding is at an end. If this were true, it would be in contravention of the provisions of Section 6, Article IV of the Constitution, as amended, which confers upon the court of appeals jurisdiction to review, affirm, modify or reverse the judgments of the court of common pleas. This provision relates to all judgments of the courts of common pleas, and there is no authority on the part of the general assembly to limit the jurisdiction of the court of appeals to any particular class of judgments. The Cincinnati Polyclinic v. Batch, 92 Ohio St., 415.

' Our holding is that the right of plaintiff in error to commence the proceeding in the probate court for the termination of the guardianship and to appeal to the court of common pleas in her own name carries with it the right to file a petition in error in the court of appeals to have the judgment óf the court of common pleas reviewed.

The judgment of the court of appeals is vacated and the cause is remanded to that court with direction to overrule the motion to dismiss the petition in error and for further proceedings according to law.

Judgment vacated.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: Johnson, J. Jones, J.,

text:
    West, Receiver, v. Gillette, Admr.

      Negligence — Motorman of street car — Vigilance required at street crossing — To avoid collision with vehicle — Injury to vehicle driver — Jury to determine extent of vigilance — Negligence of vehicle driver — Will not defeat recovery, zvhen — Doctrine of last chance.

    1. Where the motorman of a street car, in the performance of his duty to keep watch to learn .of danger to persons who may be crossing the track on a public street crossing, discovers that the driver of a smaller vehicle is about to cross the track in front of his car, it is his duty to use ordinary vigilance and care to stop or check the car in order to avoid a collision.
    2. Where a collision occurs and such driver is injured and the undisputed evidence shows that the motorman actually saw such vehicle and had it continually, in view for a considerable distance 'from the crossing, it is for the jury to determine whether he exercised such vigilance and care in the circumstances; and the fact that the driver may have been originally negligent in •the manner of going on the crossing will not, as matter of law, defeat his right to recover for the injury, if the motorman has not used such vigilance after discovering him.
    (No. 14998
    Decided February 13, 1917.)
    Error to the Court of Appeals of Delaware county.
    The defendant in error, Walter Gillette, administrator, brought suit in the common pleas court of Delaware county against the plaintiff in error, Eli M. West, receiver of The Columbus, Delaware & Marion Railway Company, to recover damages for the alleged wrongful death of Albert N. Gillette, who was killed on the 11th day of January, 1913, while driving his horse attached to a buggy upon and over the crossing of Olentangy avenue and San-dusky street within the corporate limits of the city of Delaware.
    The petition averred that the interurban railroad line is located on and along Sandusky street, and that Olentangy avenue is a public street which extends westerly to Sandusky street; that the decedent was driving west on Olentangy avenue and approaching Sandusky street; that the railroad is on the east side of Sandusky street, across and past said Olentangy avenue; that about 300 feet north of said Olentangy avenue there is an elevation, from which point south to said Olentangy avenue there is a very steep grade; and that the motorman, or other employe, on one of the electric cars of defendant, upon reaching the elevation north of said Olentangy avenue, has a clear view thereof and there is nothing to prevent him from seeing any person traveling along said Olentangy avenue towards Sandusky street.
    It is averred that there was an ordinance of the city which limited the speed of the car to eight miles an hour, and that the decedent had a right to and did believe that said approaching car, which was at the top of said elevation more than 300 feet away when said decedent started towards said track, was not running at a speed in violation of the ordinance, nor at such a speed that he could not cross in safety.
    It is further averred that the motorman at a speed in violation of the ordinance negligently and wilfully ran against the horse and buggy of the decedent; that when the decedent started across the track the motorman could see him more than 300 feet away.
    It is alleged that the motorman ran the car at a high, reckless and dangerous rate of speed in utter disreg? rd of the rights of decedent, without giving warning by whistle or otherwise, and that in the collision which resulted the decedent received injuries from which he died.
    The answer of the defendant, after admitting the collision and that the decedent died shortly thereafter, denied all the other allegations of the petition.
    It averred that, if upon the trial it should appear that the defendant was guilty of negligence as charged in said petition, the decedent was guilty of negligence directly contributing to his injury and death in that he started to cross the tracks of the defendant at the point of the collision without first exercising care to discover the approach of the car of the defendant.
    The plaintiff in reply denied all the allegations of negligence against the decedent.
    There was a verdict and judgment for the plaintiff in the trial court. This was affirmed by the court of appeals, and this proceeding is brought to reverse that judgment.

      Mr. Harry F. West, for plaintiff in error.

      Messrs. Marriott, Freshwater & Wickham and Mr. George C. Snyder, for defendant in error.
   Johnson, J.

On trial of the case motions by the defendant, made at the close of the plaintiff’s evidence and at the close of all of the evidence, to instruct the jury to return a verdict in its favor, were overruled by the court, and it is contended that the court erred in these holdings. An instructive analysis of the evidence is presented in the brief of counsel for plaintiff in error, and a vigorous argument is made in support of his position.

The record discloses that there was considerable conflict in the evidence with reference to the controlling facts which were put in issue by the pleadings, viz., the location of the horse and carriage at the time of the injury, the conduct of decedent, the question of his negligence, the rate of speed at which the horse was being driven by him, the manner in which the car of the defendant was being operated, and the rate of speed at which it was going.

There was very substantial evidence in support of the claims of the contending parties as to these matters, and the determination of the issues of fact was entirely for the jury under proper instructions of the court.

The chief reliance of the plaintiff in error is upon the contention that the court erred in its charge to the jury, and that the error was accentuated by the action of the court upon a request made for further, instructions. The record shows that after the jury had retired and had been in deliberation for some three hours, they returned into court and asked for further instructions, and that the court said to them:

“I will read it to you, gentlemen, having it in pencil (form before me, that part of the charge which has been requested by your foreman:

“ Tn other words, gentlemen of the jury, the decedent, Albert N. Gillette, may have been guilty of negligence in driving upon this track as he did, yet such negligence will not defeat the right of the plaintiff to recover, if the motorman saw the danger in which he was placed in time to have avoided colliding with him by the exercise of reasonable care and by the use of all the means at his command, and negligently failed to exercise such reasonable care. That is, if you find that there was negligence upon the part of the railway company, and negligence upon the part of Gillette, in driving upon this track in front of an approaching car, then you will proceed and examine the conduct of the motorman after he had discovered, or, by the exercise of ordinary care, ought to have discovered, the danger in which the said Albert N. Gillette was at the time. As we have said, it was the duty of the motorman to have his car under control; that is, the car must be in the power of the motorman to such an extent as that when he saw this horse and buggy on the track, or when, by ordinary care in his duty of looking for vehicles, he ought to have seen this horse and buggy on the track, he could stop his car within a reasonable time and distance so as to avoid, if possible, the collision.’ ”

The petition contained the following: “That when the said decedent started across the track of the defendant’s railway, the motorman in charge of said car could see the decedent starting across or upon the track with his said horse and buggy more than three hundred feet away, and that said motorman knew that at the speed he was running the car it would strike said horse and buggy before it could cross said track; but the plaintiff avers that the decedent did not know the speed of the car and could not learn its speed from his position, and avers that decedent reached the track when the car was at least three hundred feet away, and had a right to cross said track, and that the agents, servants and employes of the defendant had ample time, after seeing, as they' did, the decedent crossing the track, to check the speed of the car and stop it and thereby have prevented the collision.”

In Railroad Co. v. Kassen, 49 Ohio St., 230, it is held:

“It is a well settled rule of the law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.
“The rule, that the negligence of the injured party, which proximately contributes to the injury, precludes him from recovering, has no application where the more proximate cause of the injury is the omission of the other party, after becoming aware of the danger to which the former party is exposed, to use a proper degree of care to avoid injuring him.”

The case just referred to was reviewed in Drown v. The Northern Ohio Traction Co., 76 Ohio St., 234. In the second proposition of the syllabus it is held: “The doctrine of ‘last chance,’ as formulated in Railroad Co. v. Kassen, 49 Ohio St., 230, paragraph one of syllabus, does not apply where the plaintiff has been negligent, and his negligence continues, and, concurrently with the negligence of defendant, directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause.”

It seems to be now generally agreed that this doctrine of “last chance” is a humane modification of the strict and rigid rule which denies to a plaintiff under all circumstances any recovery for the negligence of a defendant, where the plaintiff has himself contributed to the injury by his own negligence. The application of this rigid rule was in many cases found to work injustice, for it would surely be unjust to hold that one should be denied the protection of the law because of acts of carelessness on his part, which were followed by subsequent acts of negligence on the part of another, which latter acts were the proximate cause of injury. It would, in effect, be holding that where, for example, one goes upon a railway track without exercising proper precautions as to danger, the railway company would be relieved, thereafter, of the duty to exercise ordinary care for his safety. Where one knows of another’s negligence and the circumstances are such that the former has control of the situation, this knowledge and control impose on him as to his subsequent acts an affirmative duty to use ordinary care to avoid injury.

In The Steubenville & Wheeling Traction Co. v. Brandon, Admr., 87 Ohio St., 187, it is held that “where the motorman of a street car being operated on a public street in a much frequented part of a city, discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in 'front of such car, it is the motorman’s duty to use ordinary vigilance to stop or check the car in order to avoid a collision; and the fact that such driver máy have omitted to look for the approach of the car will not, as matter of law, defeat his right to recover for injury from a collision with such car if the motorman has not used such vigilance.”

The court, in the opinion, at page 196, say: “But, assuming that Brandon was guilty of some riegligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw thé horse and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.”

However, in view of the situation disclosed by the undisputed facts in this case, the objection made to the charge is wholly immaterial.

It is shown by the motorman’s own testimony that he saw the horse and buggy, and actually had it in constant view from the time his car reached the top of a hill, several hundred feet away from where the buggy was, until he struck it. There is a dispute between the witnesses as to the speed of the car and as to whether it was slackened as it ran on toward the crossing where the decedent was. That the motorman fully appreciated the danger of Gillette is shown by his own testimony and that of other witnesses. He says that as he started over the hill he noticed this buggy and started blowing the whistle. Other witnesses testify to the fact that there were a number of sharp, shrill whistles blown as the car proceeded towards where Gillette was. There was no occasion for the court to use the language complained of, “or when, by ordinary care in his duty of looking for vehicles, he ought to have seen this horse and buggy on the track.” But the use of this language could not have confused or misled the jury, because it must have found that the motorman actually saw the horse and buggy in ample time to have stopped his car. It is not conceivable that the verdict of the jury could have been influenced in any degree by the inapt use of the words quoted. Even if it be conceded that the words were erroneously used, no prejudice could have resulted to the defendant.

In 2 Thompson on Negligence (2 ed.), Section 1629, the rule is stated as follows: “Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring him, they are bound to do so. And, according to the bettér view with reference to injuries to travelers at highway crossings, — as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be, — the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them.”

In Railroad Co. v. Kassen, supra, the material facts were: The company was running two trains in the same direction about two hours apart. Kassen fell from the rear platform of the forward train to the track, sustaining injuries which disabled him from leaving his position of danger on the track; and while in that condition he was killed by the following train. The employes of the company operating the forward train knew that he had fallen and was in a place of danger. Judgment against the company was affirmed in that case, and in the syllabus the rule of law is stated, viz.: “It is a well settled rule of the law of negligence, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of the injury of which he complains, if the defendant, after he became aware, or ought to have become aware, of the plaintiff’s danger, failed to use ordinary care to avoid injuring him, and he was thereby injured.”

That case is distinguished from The Erie Rd. Co. et al. v. McCormick, Admx., 69 Ohio St., 45. McCormick had, for a number of years, been a trackwalker on a portion of the road of the defendant company, which included a bridge. He was struck by one of the company’s trains while on the bridge, receiving injuries from which he died. It was shown that he crossed the bridge at least twice daily and had full knowledge of the whole situation. The court say, at page 51: “There is no statute requiring the construction of a railroad bridge in any other manner than that in which this bridge was. constructed; certainly there is no common knowledge that different methods of construction prevail, nor was there any evidence to that effect. There was, therefore, shown no duty whatever resting upon the company to construct its bridge otherwise; and if there had been such duty it is entirely clear from the plaintiff’s own case that, with full knowledge of the condition acquired through ten years of service, he had acquiesced in that condition, and had thereby waived a right of action in consequence of it.” Concerning the rule in such a case the court say, at page 53: “The concrete rule upon the subject is, that if one is upon the track of a railway company by his own fault and in peril of which he is unconscious, or from which he cannot escape, and these facts and conditions are actually known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury. It does not impose the duty to exercise care to discover that one so upon the track is in a place of danger, but it does impose a duty to be exercised upon actual discovery.”

The facts in that case and the relation of the parties to each other were entirely different from the facts and relation in the case we have here. McCormick was not at a public crossing, or at any other place where the public had a right to be, and the court carefully point out the situation and the circumstances under which McCormick happened to be on the bridge, and say “with full knowledge of the condition acquired through ten years of service, he had acquiesced in that condition, and had thereby waived a right' of action in consequence of it.” . ■

We think the rule stated in Thompson on Negligence, which we have hereinbefore quoted, is well founded in reason and authority, and in view of the undisputed facts shown in this record it is wholly unnecessary to review the large number of cases touching the question. They could be of no assistance for the purposes of this case. Even if it be conceded that the trial court erred in including in its charge the words, “or, by the exercise of ordinary care, ought to have discovered,” as claimed by the plaintiff in error, .the error could not prejudice the defendant’s rights under the circumr stances alluded to.

There was the usual variance in the details given by the different witnesses and there was testimony directly supporting the contentions of each of the parties. But as to the actual view and knowledge of the motorman of the entire situation there is no dispute.- Mr. Stickney, a witness for the plaintiff, testified that he was a passenger on the car at the time; that the car was running about twenty miles an hour, and that there was no change in the speed of the car after it left the top of the hill until it struck the buggy. He testified that when the “sharp, shrill whistle” was sounded he got up and looked out of the car. His mind was evidently-fixed on the transaction.

The testimony of the motorman shows that he had actual view and knowledge of the entire physical situation from the time he started down, the hill referred to; that just as the car started over the hill he noticed the buggy; and that he “started blowing the whistle and applied a little air.” To quote his exact words: “I commenced blowing the whistle again, and it seemed like the horse was going to stop, so I released my air again.” These steps were repeated until the collision.

As above stated, other witnesses testified to other details. It was the function of the jury to determine the ultimate facts from the evidence and to determine whether or not the motorman had, in full view of the entire situation, relied entirely on his whistle; whether or not he had failed to perform his duty to maintain proper control of the car, in. order to be able to stop it if necessary to avoid injury; and whether or not he used ordinary vigilance to stop or check the car under the circumstances shown by the evidence.

With reference to Gillette, it is not shown whether or not he looked from behind the curtain which was on his buggy. As was said in the Brandon case, supra, at page 195: “It is possible he did look and, mistaking the speed of the car, thought he could safely cross, thus attempting to exercise an undoubted right in a public street. If he did it would be a question for the jury whether a man of ordinary prudence, situated as he was then situated, would have done as he did, * * * The driver of such a vehicle is not, in the use of the street, a trespasser, nor a licensee, but one pursuing an undoubted right, and the question always is, did he, in the pursuing of that right, exercise ordinary care ? * * * But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw the horse and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.”

For the reasons given, we think it clear that there is no error shown in this record prejudicial to the defendant in the trial court, and the judgment will be affirmed.

Judgment affirmed.

Wanamaker, Newman and Donahue, JJ., concur.

Jones, J.,

dissenting. The accident occurred in the outskirts of the city of Delaware. The interurban car was proceeding along Sandusky street in a sparsely populated suburb of that city, and the collision of the car with the buggy in which the decedent was driving occurred at the crossing of that street with Olentangy avenue, a thoroughfare approaching Sandusky street at right angles. There is a conflict in the testimony as to whether the motorman sounded his signal, and as to the rate of speed the interurban car was moving at the time of the accident. There is no dispute in the testimony that the decedent was driving on Olentangy avenue towards the crossing in question in an enclosed buggy. Four eyewitnesses testified to the accident, two for the plaintiff and two for the defendant. These witnesses testified that the car and buggy approached the crossing simultaneously. By the exercise of care the motorman and the decedent could have seen each other before the crossing was reached. There is no dispute but that the horse and vehicle “continued” from a distance of from twenty-five to fifty feet from the crossing, as testified to, until the crossing was reached, the only divergence upon that point being whether the horse was walking toward the crossing or jogging along on a trot.

Under this state of facts the court charged the jury: “If .you find, therefore, that there was negligence upon the part of the railroad company, and negligence upon the part of Albert N. Gillette in driving upon this track in front of an approáching car, if he did, then you will proceed and examine the conduct of the motorman, after he had discovered, or, by the exercise of ordinary care, ought to have discovered, the danger in which Albert N. Gillette was at the time. As we have said, it was the duty of the motorman to have his car under control; that is, this car must be in the power of the motorman to such an extent as that when he saw this horse and buggy on the track, or when, by ordinary care in his duty for looking for vehicles, he ought to- have seen this buggy on the track, he could stop his car within reasonable time and distance so as to avoid, if possible, the collision or accident.”

That this portion of the charge was effective in producing the verdict is self-evident. The record discloses that the jury returned for further instructions upon this point, and that the foreman asked the court “to read that part of the charge referring to a similar case where negligence may be found on both sides.” The court thereupon read to the jury the charge quoted, whereupon the foreman answered, “I guess that is sufficient, as far as I am concerned.”

The record therefore discloses, since the verdict of the jury was evidently based upon this particular instruction, that the same, if erroneous, was highly prejudicial. That the charge so given is erroneous, under the facts stated, is evident not only from the decisions of our own court, but from the pronouncement of other jurisdictions which have refused to approve a similar charge under the facts disclosed. Why the triql court gave this instruction in its general charge, and emphasized it by repetition, is beyond comprehension, since it not only failed to follow the express rule of this court upon the subject but refused to submit to the jury special re-' quest No. 8, asked by decedent’s counsel on the trial, which, if justified by the facts offered, would have been less objectionable. That instruction was as follows:

“The court instructs you that even if you' should find that the decedent, Gillette, was guilty of some negligence in driving on the track in front of the approaching car, yet, if the motorman in charge of the car, in the exercise of even ordinary care, after he saw the horse and buggy, and appreciated Gillette’s peril, had time and opportunity to avoid the possible consequences by stopping the car, and neglected to exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.

If it be conceded that the petition makes a case of “the last clear chance,” and in our view it does not, the general charge permits recovery by the plaintiff in case the jury found that both the motorman and the decedent were negligent in their manner of approaching the crossing. The italics used in this case are our own, and are used to show wherein the trial court committed error. The legal doctrine of the last clear chance, or “newly discovered peril,” can only be applied to those cases where the facts warrant. It is never applied where the negligence of both defendant and plaintiff is concurrent and so coincident in point of time as to be the proximate cause of the injury.

The principle is a humanitarian one, developed in the evolution of our modern jurisprudence, and in some instances extends to an injured person the right to reparation even though he himself is negligent. But where the negligence of both combine proximately to produce the injury there can be no recovery by either. The development of the principle now favors an injured person, though he has negligently placed himself in a perilous situation, where the defendant has discovered and appreciated that peril and was thereafter bound to use ordinary care to protect him from injury. It is the knowledge of the peril that gives rise to the new and special duty of protecting one who himself , has been negligent. The law, then, says in effect: Though one has been negligent he shall not be penalized if another after notice thereof fails to exercise due diligence towards his protection. In such a case the law regards the prior negligence of the injured person as remote, for the reason that the defendant might later have prevented the injury, and, if defendant does not use such care for the protection of one it knows to be in a perilous situation, that lack of preventive care becomes the proximate cause of the injury. This principle is clearly avowed by this court in The Erie Railroad Co. et al. v. McCormick, Admx., 69 Ohio St., 45. The charge given in the case at bar is in direct' conflict with the law established in the case just cited, and in the later case of Drown v. The Northern Ohio Traction Co., 76 Ohio St., 234.

It is incomprehensible why the syllabus in this case has not attempted to overrule or distinguish these two cases and to clarify the “last chance” rule - for the benefit of the bench and bar of this state. The opinion seems to rely for authority on the cases of Railroad Co. v. Kassen, 49 Ohio St., 230, and The Steubenville & Wheeling Traction Co. v. Brandon, Admr., 87 Ohio St., 187. The Kassen case was distinguished by this court in the case of Erie Railroad Co. v. McCormick, supra, where the court say on page 53: “The concrete rule upon the subject is, that if one is upon the track of a railway company by his own fault and in peril of which he is unconscious, or from which he cannot escape, and these facts and conditions are actually known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury.” That opinion clearly analyzes the former decision and holds that in the Kassen case “the actual knowledge of the employes of the company in charge of the forward train was its [the company’s] actual knowledge,” that the “liability of the company was placed upon the sole ground that after receiving actual notice that Kassen was upon the track and in a position of peril, it failed to use the means at hand to avoid injury to him,” and that “the doctrine, of the case can have no application where neither the company nor its employes operating the train by which the injury is inflicted may be charged with actual knowledge.” The Kassen case was also distinguished in the Drown case, supra. In the case of The Steubenville & Wheeling Traction Co. v. Brandon, Admr., supra, the rule of the last clear chance was not invoked. That case held simply that the failure of the plaintiff to look for the approaching car did not as a matter of law defeat his right of recovery. The' triad court directed a verdict for the defendant upon the theory that plaintiff’s evidence was not sufficient to go to the jury for the reason that it became the absolute duty of the plaintiff, as a matter of law, to look out for the traction car. This court held that the failure to look for the approach of the car before attempting to cross was not, in this state, negligence as a matter of law, but that the circumstances surrounding that case should have been submitted to the jury to determine whether or not such failure was in fact negligence. The question involved in that case was not involved in this, and this court did not undertake to overrule the McCormick case, supra, as appears from the close of the opinion of Judge Spear, as follows: “But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after he saw the horse and appreciated Brandon’s peril,” had failed to exercise ordinary care, in that event that neglect could be regarded as a proximate cause of the injury.

By its instruction in the case at bar the court took upon itself to say to the jury that notwith-' standing the peculiar facts presented, the plaintiff could recover even if his negligence was concurrent and of the same character as that of the defendant. Instructions applied to facts similar to this case and using substantially the same language have generally been held to be erroneous, as will be found in some of the following cases, which discuss at length the principle involved: Thompson v. Los Angeles & S. D. Ry. Co., 165 Cal., 748; Evansville Rys. Co. v. Miller, 111 N. E. Rep., 1031; Himmelwright v. Baker, 82 Kans., 569; Indianapolis Trac. & Term. Co. v. Croly, 54 Ind. App., 566; International & G. N. Ry. Co. v. Ploeger et al., 96 S. W. Rep., 56, and Dyerson v. Union Pac. Rd. Co., 74 Kans., 528. It is true that cases are found that authorize a recovery, where the plaintiff has been negligent, if the defendant ought to have had opportunity for discovering his peril. It is evident that these cases are at variance with the McCormick case. But an examination of the decisions which support this apparent view will disclose that they were generally based upon a state of facts entirely different from the instant case. In such cases recovery is permitted under circumstances where the negligence had ceased or spent its force and therefore became the remote and not the proximate cause of the injury. Being the remote and not the efficient cause of the injury, the defendant, under the doctrine of the last clear chance, has been held liable for the injury, whether it knew of the decedent’s peril or ought to have known of it in the exercise of ordinary care. Where the plaintiff has been negligent, as where he has negligently placed himself in a dangerous position from which he is unable to extricate himself, as where a driver has negligently placed himself in a situation from which he is unable to escape, or where a traction engine has stalled on a railroad crossing some time before the collision, or where a pedestrian has negligently walked along a railway and become helpless or asleep on the track, and in a situation where the employes of the company would have discovered his peril if ordinary care were used, some courts have held under such circumstances that failing to see might be held to be the proximate cause of the injury; but even in these cases recovery is denied' where the negligence of both parties continues and concurs up to the time of injury. In support of this exception to the rule-the textbook cites the jurisdictions of Ohio, North Carolina and Virginia. The Kassen case is cited from Ohio as supporting the text, but that case has been distinguished by a later decision. In North Carolina the exception has been applied where the injured person had been asleep or in a helpless condition, though previously negligent. (Carter v. Southern Ry. Co., 135 N. C., 498, and Swayer v. Roanoke Rd. & L. Co., 145 N. C., 24.) And in Virginia, although the text seemed to have support in the earlier cases, the court, later clarified the question and applied the doctrine to those cases where there was something in the condition or situation of the injured person to ad-monish the defendant that he was not able to protect himself, but held that it had no application where the plaintiff’s negligence continued to the time of the collision. Roanoke Ry. & Elec. Co. v. Carroll, 112 Va., 598, and Southern Ry. Co. v. Bailey, 110 Va., 833.

By the charge in this case, however, the doctrine of contributory negligence, long recognized in this state, has been emasculated, since the charge permits recovery by a negligent person even though that negligence concurred in and was a proximate cause of the injury. It was accordingly at variance with the decision in the case of Drown v. The Northern Ohio Traction Co., supra.

The fallacy in applying the charge to cases of this character is clear. Let it be assumed that two motor vehicles are approaching a crossing over thoroughfares meeting one another at right angles, and that in their approach each driver is negligent in not seeing the other. Would any principle of law uphold the right of either or both of the parties to invoke the rule of the last clear chance ? It is evident that neither could do so because of the culpable negligence of each in such approach. Could it be said that either or both could have a recovery under such a charge as was given to the jury in this case? And though a judgment had been secured by one suing first, upon the theory that the other ought to have observed his approach, would it not follow, under the instruction given, that the other, or second driver, in a later action, could also secure a judgment upon the theory that the first ought to have seen the second vehicle in time to have avoided the accident ? Such is the effect of the instruction given in this case.

The doctrine of the last clear chance is the development of the rule announced in Davies v. Mann, 10 M. & W., 546. In that case the plaintiff had fettered his ass and turned him upon the highway to graze. It appears that there was no plea of imputed negligence; but a careful inspection of. the case fails to reveal but that the defendant may have had actual knowledge of the presence of the ass upon the highway. The court there held that unless it was shown that the donkey’s presence was the immediate cause of the injury plaintiff’s negligence was no defense, and that, if the proximate' cause of the injury was the fault of the defendant’s servant in driving too fast, the mere fact of a prior placing of a fettered ass upon the road would not defeat recovery. It is evident in that case, irre-. spective of the question of the defendant’s actual knowledge, that the decision was based on the fact that the plaintiff’s negligence was not an immediate factor producing the injury but was a remote and not the proximate cause. The active negligence of placing the fettered ass in the highway had ceased an appreciable time before the subsequent act of the defendant, and did not continue and concur with the defendant’s negligence in producing the accident. That the court of exchequer did not intend to overrule the established doctrine that the concurring negligence of both parties would defeat a recovery is evident from their previous decision in the case of Vennall v. Garner, 1 Cr. & M., 21, where at least one member of the court was also a member of the court that later decided the case of Davies v. Mann. In the Vennall case, involving a recovery where two ships came into collision, Sir John Bayley, a baron of the exchequer court, held as follows: “I quite agree, that if the mischief be the result of the combined negligence of the two, they must both remain in statu quo, and neither party can recover against the other.”

This principle found early lodgment in this state in the case of Kerwhaker v. The Cleveland, Columbus & Cincinnati Rd. Co., 3 Ohio St., 173, where it was held that “When the negligence of the defendant on a-suit upon such ground of action, is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury, the action is maintainable.” (Italics ours.)

This rule is recognized in practically every jurisdiction; and the case of Drown v. The Northern Ohio Traction Co., supra, is simply an elaboration of that principle. In the case at bar the motorman might .well have assumed that the traveler approaching the crossing would not attempt to pass in front of the car, but would stop before the point of danger was reached. N. Y., C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326; Thompson v. Los Angeles & S. D. Ry. Co., 165 Cal., 748; Roanoke Ry. & Elec. Co. v. Carroll, 112 Va., 598; Ill. Cent. Rd. Co. v. Ackerman, 144 Fed. Rep., 959, and Thompson on Negligence (White’s Supp.), Section 1601, and authorities there cited.

The concrete rule upon the subject is found in 29 Cyc., 530, where it is stated that a person guilty of negligence in exposing himself to danger may still recover, if the defendant, after knowing of such danger, could have avoided the injury by the exercise of ordinary care. But it is stated that “This rule has no application where the negligence of the person injured and of defendant are concurrent, each of which at the very time when the accident occurs contributes to it.” See also 33 Cyc., 854.

The first proposition of the syllabus in the instant case, as an abstract proposition of law, is without criticism, for the element of decedent’s negligence is lacking, and it therefore cannot be applied to the charge in this case where such negligence may be found by the jury. The latter part of the second proposition is not apropos, either to the case made or to the charge given, for two vital reasons. It fails to require the element of appreciation of the decedent’s peril after seeing him “a considerable distance from the crossing.” Furthermore, what is meant by the expression, the decedent may.have been originally negligent? Does it imply a cessation of decedent’s negligence, or that it was so remote as not to constitute a proximate. cause of the accident?. That phase is not charged in the petition, not suggested in the evidence, nor contemplated in the charge under consideration. Unfortunately the charge given assumes a present, concurring negligence. The language used was: “If you find, therefore, that there was negligence upon the part of the railroad company, and negligence upon the part of Albert N. Gillette in driving upon this track in front of an approaching car.” The car and buggy approached the crossing, simultaneously. The verdict is justified in the majority opinion notwithstanding the charge, because the motorman, near the point of collision, did see the decedent. So did the engineer see the deceased in the McCormick case, supra. It is true the court in that case held that no duty rested upon the railway company to construct its bridge otherwise than it did, and that the trackwalker was not among that class of persons to whom was owing the duty requiring the giving of crossing signals. These features of course are not in the present case, and do not affect it, and it is difficult to perceive their relevancy. Upon the main question the cases are not distinguishable. In both cases a duty arose requiring the exercise of ordinary care, but this duty became existent after the discovery and appreciation of the peril. The present case presents a much stronger reason for the application of the principle under discussion than does the McCormick case, for in the latter it' was an issuable fact whether the injured person could have escaped from a situation in which he had theretofore negligently placed himself.

In the present case the motornjan testified he first discovered the horse when it was fifty feet from the track. If the court had confined his charge to the motorman’s duty after he saw the horse and appreciated the decedent’s peril, the charge might have been consistent with the McCormick case, if concurring negligence were absent. But driving along Olentangy avenue as decedent did, the language employed by the court — to the effect that the jury should have examined “the conduct of the motorman after he had discovered, or, by the exercise of ordinary care, ought to have discovered,” the decedent’s danger — could only apply to the motorman’s conduct in not earlier discovering the impending peril at any point along Olentangy avenue, and thus impose the duty of ordinary care upon the motorman in case he should have earlier discovered the decedent’s perilous situation. The charge could have been understood in no other sense. In other words, the same duty of ordinary care that was required after actual discovery was imposed upon the motorman in case he “ought to have discovered” the peril.

It is difficult to see how the trial court could have gone astray in this case, especially in view of the adjudicated cases reported by this court. It may be said that the several circuit courts of this state have not been in doubt as to the proper rule to apply in cases of this character since the decision of The Erie Railroad Co. et al. v. McCormick, Admx., supra, distinguishing the Kassen case. The latter case was decided by this court in 1892, and there might have been some justification for giving such instructions under that decision, before the pronouncement of this court in the case of Erie Railroad Co. v. McCormick, Admx., supra. Since the latter decision the appellate courts of this state generally have found no trouble in applying the proper legal principle to cases of this character. Counsel for the defendant in error, as did the court of appeals, relied upon the old case of The L. S. & M. S. Rd. Co. v. Schade, Admr., 15 C. C., 424, decided by the eighth district in 1895, a case which the old circuit court decided upon the authority of the Kassen case, supra. Hale, J., a member of that court, in his dissenting opinion clearly distinguishes the Kassen case upon a course of judicial reasoning later followed by this court in the case of Erie Railroad Co. v. McCormick, decided October 13, 1903. Since the decision of the latter case, the circuit court of the eighth judicial district, in at least three reported cases has expressly repudiated the doctrine announced by it in the Schade case, one of which is The Northern Ohio Traction Co. v. Drown, 7 C. C., N. S., 549. The circuit court of the first judicial district in Hamilton county denied recovery in The Cincinnati Traction Co. v. Jones, 13 C. C., N. S., 319. The circuit court of the sixth judicial district refused to apply the last chance rule in the case of The L. S. & M. S. Ry. Co. v. Callahan, 2 C. C., N. S., 326. The circuit court of the seventh judicial district refused to follow the Schade case and distinguished the Kassen case in the case of The L. S. & M. S. Ry. Co. v. Harris, Admr., 3 C. C., N. S., 599. And the circuit court of the fourth judicial district has frequently held that the doctrine of the last clear chance cannot apply to a state of facts which permits a plaintiff to recover notwithstanding his own negligence and especially under such a state of facts as is disclosed here. The charge of the trial court was highly prejudicial, and the erroneous charge was effective in producing the verdict, as evidenced by the record.

Matthias, J., concurs in the dissenting opinion.


author: Nichols, C. J.

text:
    Thompson et al. v. Denton.

      Receivership — Appeal to court of appeals — From order fixing compensation — Of receiver in chancery case — Constitutional law.

    Under the provisions of Section 6, Article IV of the Constitution of Ohio, an appeal will lie to the court of appeals from an order of the court of common pleas fixing fully and finally the compensation for the services of a receiver in a chancery case.
    (No. 15188 —
    Decided February 13, 1917.)
    Error to the Court of Appeals of Hamilton county.
    The facts are stated in the opinion.

      Messrs. Ernst, Cassatt & Cottle, for plaintiffs in error.

      Mr. Joseph W. O’Hara; Mr. Sidney G. Strieker and Mr. Louis A. Ireton, for defendant in error.
   Nichols, C. J.

In June, 1914, Joseph Thompson, a stockholder of The George W. McAlpin Co., of Cincinnati, filed his petition in the Hamilton county court of common pleas, seeking equitable relief, asking, first, that a receiver be appointed to take charge of and manage the property and assets of the corporation, and, second, that the court administer as a trust fund the property and assets of the corporation.

Thereafter the court to which application was thus made appointed Elroy C. Denton as such receiver, who proceeded to administer, the trust, and, after conducting the business as a going concern for nearly a year, sold the assets then remaining, consisting largely of merchandise, to B. W. Jones, which sale was confirmed by the court on May 10, 1915.

On May 7, 1915, three days prior to such confirmation, B. W. Jones, the prospective purchaser, who was also a large creditor of the corporation, was granted leave by the court to file an intervening petition in the original case, and thereby became a party thereto.

On the same day, Jones, as such intervenor, filed his petition, concluding the same with the following prayer: “This intervenor prays that in making any orders herein the court will protect his and the rights of creditors.”,

In the bid submitted by Jones and accepted by order of court it was stipulated that if his bid be accepted he would “pay the costs and expenses of administration, as may be finally allowed and adjudicated in this cause, in this court or on error, or appeal, including the fees of the receiver and the attorney for the receiver.”

In the entry confirming the sale it was ordered by the court that the receiver “retain out of the cash in his hands the sum of $21,250.00 to abide the final allowance and adjudication of fees and allowances to the receiver, attorneys and costs.”

On May 22, 1915, the following order was entered: “Upon the evidence adduced, the court, being fully advised in the premises, upon due consideration, finds that the fair and. reasonable value of all services by said Elroy. C. Denton as receiver herein is $15,000.00. It is accordingly ordered and adjudged by the court that the receiver herein pay to Elroy C. Denton the sum of $15,000.00 in full payment of all services as receiver of this estate.”

From this order Jones, together with certain other parties, appealed to the court of appeals. Motion was made by appellee Denton to dismiss the appeal on the ground that the court of appeals was without jurisdiction to entertain an appeal from such an order in such a case. The court of appeals sustained the motion and dismissed the appeal. From this judgment error is prosecuted to the supreme court of Ohio, appellants coming as a matter of right, since the case involves a question arising under the constitution of the state of Ohio.

There is but a single question in this case, important as it is: Under favor of that part of Section 6, Article IV, of our Constitution, which provides that courts of appeals shall have “appellate jurisdiction in the trial of chancery cases,” does an appeal lie from an order of the kind entered May 22, 1915, fixing the compensation of the receiver ?

This court has already held that all jurisdiction in appeal attached to the court of appeals is constitutionally conferred. The Cincinnati Polyclinic v. Balch, 92 Ohio St., 415.

In the same case it was held that the general assembly is wholly without power to either enlarge or diminish such jurisdiction.

In the case of Wagner v. Armstrong et al., 93 Ohio St., 443, this court declared to be unconstitutional Section 12224, General Code, which purported to confer such jurisdiction on the court of appeals.

The case in hand is not fraught with the difficulty encountered in Wagner v. Armstrong et al., supra, for here the case is undoubtedly one of chancery origin. The relief sought, the manner of the administration of the trust, the entire proceedings had in the court of common pleas, were all of an equitable nature.

Counsel for appellee have submitted for the consideration of the court five propositions of law in support of their contention that an appeal does not lie from an order of this character, all of which are worthy of the attention of the court.

First: That the Ohio law as to appeals is different from all others, and in this state the entire action is carried up for a trial de novo upon the facts and law.

This contention may in the main be granted, without being in any sense determinative of the specific point now under consideration.

Second: That the order complained of does not involve the main controversy in the case or relate to any iss.ue between the parties, but is only incidental or ancillary thereto, and is therefore not .appealable.

Third: That under Section 6, Article IV, of the State Constitution, as amended September 3, 1912, jurisdiction of the court of appeals is limited to the trial of chancery cases, and an order on a motion fixing the compensation of a receiver, after judgment rendered between the parties on the merits, is not a trial in any sense.

The second and third points thus advanced will be treated as one.

Were these proceedings had under favor of old Section 12224, General Code, which fixed the jurisdiction of the circuit court on appeal, there might be some doubt as to the right of an aggrieved party to appeal from the order under consideration, although, for all of that, authority is not wanting under the old order of things for an appeal from just such an order.

In the case of Gardiner et al. v. Railroad Co. et al., 65 Ohio St., 608, decided by this court without opinion, an examination of the record discloses the fact that the court of common pleas of Huron county made allowance to certain receivers, as compensation for their services, the sum of $115,000, throwing in for good measure a private car.

Appeal was made to the circuit court where appellants were met with a motion to dismiss. The circuit court overruled this motion, heard the case and reduced the compensation allowed by the common pleas court from $115,000 to $15,000. The private car so generously awarded was also withdrawn from the receiver.

The usual and most forceful reason advanced against regarding unreported cases as judicial authority is that it is not possible always to ascertain the exact legal proposition involved and decided. It is urged, and with good reason, in such cases, that where several errors have been assigned, and the court does not state the point on which the decision rests, the uncertainty is such as to destroy the case as commanding authority.

However, in the Gardiner case, supra, it is wholly beyond dispute that the question involved in the instant case was there decided by the court. The point made by the receivers in that case, and on which they predicated their motion to dismiss, was that under the statute then regulating the jurisdiction of the circuit court that body was wholly without jurisdiction, since the order from which appeal was had was not a final order. The action of that court in overruling the motion to dismiss and in proceeding to hear the case on its merits necessarily sanctioned the practice there invoked, and the supreme court in afterwards affirming the judgment of that court necessarily gave to that decision its full commendation. Under such circumstances, the decision of the supreme court cannot be brushed aside as being wholly without influence.

We are now, however, dealing with the subject of appeals from an entirely new and an essentially different angle, and, since the constitution itself and not the general assembly now deals with the subject, we feel free to approach a consideration of the matter as if it were an original question.

We recognize that there may be many occasions where an appeal from an order of this character will be invoked, and it is felt to be the duty of the court in the interpretation of the constitution to establish in the interest of justice a rule which will facilitate proceedings by way of appeal.

It would certainly require no argument to support the position of plaintiffs in error that some right of review should be vouchsafed them in a matter of this importance. If it were to be held that the order in question is not a final order from which appeal will lie — and if it be hereafter held that error could not be prosecuted from the same order for the same reason — then we are making this very order final, conclusive and forever binding by the very act of holding that it is not final.

In this connection attention should be directed to the fact that counsel for defendant in error in their brief inferentially contend just as earnestly that error does not lie from the allowance of compensation to a receiver, as they do that there can be no appeal. It is their contention that the order in question is neither a judgment nor a final order.

The position as to the want of power to prosecute error is supported by calling attention to the fact that Section 12247, General Code, which conferred jurisdiction on the circuit court in error proceedings, employed the terms “judgment or final order,” while the new constitution, in providing like jurist-diction to the court of appeals, omits “final order” and employs “judgments” only. What effect, if any, this change will work on established practice in error proceedings, we will not now undertake to say, as that phase of the controversy is not now before the. court, but it is pertinent to observe that if neither error nor appeal does lie then the court that selects the receiver may finally fix the compensation of an officer of its own selection, and, no matter how grievous a wrong be done to creditors, they are without remedy.

We are confronted with the further fact that if by judicial construction of the terms here employed neither error nor appeal may be available to an aggrieved party, then there is no forum where the wrong may be remedied, for it is certain by reason of recent adjudications of this court that the legislature is powerless to act.

It is difficult enough to determine in the first place just what was intended by the constitution framers in the use of the term “chancery cases.” We have already had our attention called to the fact that in the court of appeals many diverse views are entertained on this subject, and it is learned that whenever a case of any kind or character is attempted to be appealed to the court of appeals the first step invariably taken by appellees is to file a motion to dismiss for want of jurisdiction.

We do not want to add to the present difficulty or enlarge the restrictions on appeals by adopting a narrow and stringent rule as to just what orders made in a concededly chancery case may be the subject of appeal. We think best to wipe off the slate and start anew.

We hold that the term “trial” as used in the constitution is broad enough to include any judgment, final order or decree, not interlocutory in its nature, affecting the substantial rights of a party to a chancery suit.

In the instant case the order was made, it is true, after judgment had been rendered on the issues defined by the original pleadings in the case, but it was of such character as to substantially affect the interests of all parties to the record, and especially those creditors, large in number, with claims totaling over a million dollars, who, while nofi formal parties, were in fact the real parties in interest.

We ascertain that in the matter of making the order fixing the receiver’s compensation, a regular hearing was had, testimony pro and con was offered, arguments of counsel were heard, and the entry of allowance states as a fact that the court “after due consideration” made the order in question. This order certainly had all the elements of a judgment.

We feel that we are not doing violence to the root-meaning of the term “trial” by holding that the proceedings so had would constitute a judicial investigation and determination of an issue that arose during the progress of the administration of the trust, ancillary, it is'true, to the main issues, but important and indeed necessary to finally determine the rights of the interested parties. It must be conceded that the order of the court ’finally disposed of a particular independent issue that arose in the case.

It is the peculiar function and attribute of an equitable proceeding that by it the chancellor is enabled to deal with the entire subject-matter and to ascertain and determine the rights of parties which relate to and concern it, but which are wholly independent of other matters and issues involved in the proceeding.

The order so made was in no sense interlocutory in its nature, and consequently the judgment that is to be entered in this case will in no wise sanction interminable appeals of questions arising in the course of the hearing of a chancery case of this or any other character.

Fourth: It is claimed that “proceedings in relation to the appointment and removal of receivers are special proceedings under the code, froth which no appeal lies.”

This contention cannot be held to be sound in view of thq holding of this court in the case of Wagner v. Armstrong et al., supra. This court denied the contention made in that case that since partition was a special statutory proceeding it no longer retained its chancery nature and was therefore not appealable under the new constitution.

Fifth: . It is claimed that there were no proper parties before the court of appeals, the particular point raised being that the appellee, Elroy C. Den-ton, was not a party to the action in the common pleas court, and is not a party to the proceedings on appeal.

In support of this contention citation is made of the case of Fiedeldey v. Diserens, 26 Ohio St., 312, where it is held: “A master commissioner, or other party entitled to have fees taxed as costs in an action, can not in his own name prosecute a proceeding in error to reverse an order of the court for re-taxing the costs, or disallowing his claim for fees in the case.”

We do not think the rule established in that case has application here. The appeal here was prosecuted by parties to the action, that is, parties originally, or made so on application to the court before the order complained of was entered.

While it is true that the appellee was never formally made a party to the suit, we hold, however, that for the purposes of this proceeding, the entry of June 26, 1914, appointing appellee receiver of the assets of the corporation, made him a party to the action. The distinction between such an officer of the court, on the one hand, and an attorney, witness, or a master commissioner, on the other, is too marked to call for elaboration.

If the receiver was not, in the larger sense, a party to the action, then the creditors had no representative in court. It is the more rational view, we ‘think, that he was very much in court, the very arm of the court, and the representative of creditors, the alter ego of the company itself.

The judgment of the court of appeals is reversed and the cause is remanded to that court with instruction to overrule the motion to dismiss the appeal.

Judgment reversed.

Wanamaker, Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.