text:
    Building Association v. Cummings.

      Bond — Seal—Greater number of signatures than seals — Name of surely not in body of bond.

    1. Where there is a greater number of signatures than seals to a bond, two or more of the signers may adopt one seal, and be charged as obligors, although the names of all the signers do not appear in the body of the instrument.
    2. To this rule, official bonds, so-called, are not an exception.
    3. Whether it was the intention of the party signing the instrument, to adopt the seal of another signer, is a question of fact for the jury, the burden being on the plaintiff to prove that the party adopted the seal or scroll.
    4. The plaintiff, a building association, in an action on the official bond of its secretary, alleged that M. C. and K. made their certain writing obligatory, of which a true copy then followed in the petition. The names of C. and K. did not appear in the body of the instrument, but the language used therein was: “ We, M.- are held and firmly bound, etc., in the sum of $5,000, for the payment of which well and truly to be made, we do hereby bind ourselves, our heirs and legal representatives, sealed with our seals,” etc. The instrument was signed by M. C. and K., but there was only one seal or scroll, which was opposite the signature of M. The petition further alleged, that M., before entering upon his trust as secretary, made and executed to the association, his bond (thereinbefore set forth by copy) with C. and K. as sureties thereon; and that by the terms and conditions of the bond, C. and K. promised, agreed and bound themselves that M. should faithfully perform the duties pertaining to the office of secretary of the association, etc.

      Meld, That on demurrer to the petition, the inference is not sustainable that only one signer sealed the instrument.
    (Decided May 1, 1888.)
    Error to the Circuit Court of Crawford County.

      On the seventh day of October, 1882, the plaintiff in error, the Citizens’ Building Association of Galion, Ohio, filed its petition in the court of common pleas of Crawford county, against J. G Meuser et al., which petition reads as follows:
    “ And now comes the said plaintiff and says: That it is incorporated under the laws of the state of Ohio, under said name of the Citizens’ Building Association of Galion, Ohio, and as such association, under said name, is doing business at Galion, in the state of Ohio. Said plaintiff, for cause of action against said defendants says:
    “ That on the third day of February, A. D. 1880, said defendant, J. G. Meuser, was, by the board of directors of said Citizens’ Building Association of Galion, Ohio, duly elected his own successor as secretary of said Citizens’ Building Association of Gal-ion, Ohio, and one David Mackey, was, on the third day of February, A. D. 1883, duly elected president of said association, and that the Citizens’ National Bank of Galion, Ohio, was, by the constitution of said association before that time adopted by said association of Galion, Ohio, made the treasurer thereof and on each said day each of said parties accepted their respective trusts, and continued to exercise the same during all the time hereinafter stated.

      “ Said plaintiff further says: That on the sixth day of April,* A. D. 1880, said J. G. Meuser, S. G. Cummings and F. H. Kuhn made their certain writing obligatory, of which the following is a true copy:
    ‘“Know all men by these presents, that we, J. G. Meuser, .............................................................., are held and firmly bound unto the Citizens’ Building Association of Gal-ion, Ohio, in the sum of $5,000, for the payment of which well and truly to be made we do hereby bind ourselves, our heirs and legal representatives, sealed with our seals and dated this sixth day of April, A. D. 1880. Whereas the above bounden J. G. Meuser was, on the third day of February, A. D. 1880, duly elected and chosen secretary of the Citizens’ Building Association of Galion, Ohio, and has been duly qualified as such: now, therefore, the condition of this obligation is such that if the said J. G. Meuser, as secretary as aforesaid, shall honestly, truly and faithfully discharge his duties as such secretary, and shall turn over to proper authorities all moneys which may come into his hands as such by virtue of his said office, according to the constitution and by-laws of said association, then this obligation to be void, otherwise to remain in full force.
    “‘J. G. Meuser, [seal.]
    “‘S. G. Cummings,
    “‘F. Kuhn.’
    “That said bond was so given by said J. G. Meuser and accepted by the board of directors of said association, and on which said sixth day of April, A. D. 1880, said J. G. Meuser eutered upon the duties of said trust as secretary of said Citizen’s Building Association of Gabon, Ohio. Plaintiff further says that prior to the sixth day of April, A. D. 1880, a constitution and by-laws were adopted by said association, and the same were in full force between the first day of January, A. D. 1881, and is still in force, subject, however, to certain amendment to the constitution of said association as hereinafter stated. By the provisions of the said constitution and by-laws of said Citizen’s Building Association of Gabon, the person so elected, and before entering upon the duties of his said office and trust was required to give bond to said association in said sum of $5,000 for the faithful performance of his duties as such secretary. The said J. G. Meuser, after his election as secretary of said association, as aforesaid, and before entering upon said trust, made and executed his bond, a copy of which is hereinbefore set forth, with the said defendants, S. G. Cummings and F. Kuhn, as sureties on said bond. By the terms and conditions of said bond said defendants promised, agreed and bound themselves in the sum of $5,000, that the said J. G. Meuser should faithfully perform the duties pertaining to said office of secretary of said association and pay the treasurer all moneys belonging to said association, the plaintiff herein, that might come into his hands, according to the constitution and by-laws of the said Citizens’ Building Association of Gabon, Ohio. That article number eight of section number six of the by-laws of said association, provides as follows :

      “1 That he (the secretary) shall keep accurate minutes of the meetings of the" association and those of the directors, and to record the same in a book or books to be kept for that purpose. He shall keep accurate accounts with all stockholders and attest all orders drawn upon the treasurer for the payment of money when ordered by the board of directors. He shall have in charge all papers belonging to the ........................ .........................................except bonds, mortgages, and policies of insurance belonging to the company, and shall safely keep and deliver the same to his successors; he shall receive all money paid into the company and deposit the same in the treasury, within twenty-four hours of its receipt, and produce the proper voucher to the president; he shall be prepared at all times to furnish the shareholders a statement of the financial concerns of the company, and at the annual meeting furnish a detailed statement of its finances; he shall give security to the association in at least $5,000 for the faithful performance of his duties.7
    “ That after the said J. G. Meuser entered upon the duties of said trust, and while exercising the duties of said secretary, by virtue of exercising the duties of said office, and prior to the time of his successor, to-wit: On the twentieth day of January, A. D. 1-881, was elected and qualified as such secretary, and between the sixth day of April, 1880, and the 20th day of January, 1881, said J. G. Meuser received large sums of money belonging to said plaintiff, to-wit: the sum of $2,488, and said J. G. Meuser, as such secretary, neglected and refused to deposit it in the treasury, or with the treasurer, or pay over to the treasurer of said association or its proper officers, said sum of money or any part thereof, nor has the said J. G. Meuser paid over to said treasurer or deposited the same in the treasury of said association or paid the same to said plaintiff or its authorized agents duly appointed by the board of directors of said association to receive said money from said J. G. Meuser, so received by him by virtue of his said office, or any part of it, although often requested so to do, but has wrongfully converted the same to his own use.

      “ Said plaintiff further alleges : That on the twenty-fifth day of July, A. D. 1882, the shareholders of said association met at the mayor’s office in the city of Galion, in pursuance to a previous call of the secretary of said association, to amend the constitution of said association so as to authorize the change of its treasurer and prescribe his term of office, and to authorize the directors to elect said trersurer, said shareholders each having due and lawful notice of said meeting. Section one of article four of the constitution of said Citizens’ Building Association of Galion, Ohio, was amended by the unanimous vote of all the shareholders of said association (more than two-thirds of all the shareholders of 'said association being present) ; said section one, article four of the constitution of said association was so- amended and adopted as to read as follows, to-wit: c The officers of this association shall consist of a president, secretary, treasurer, and seven' directors, one of whom shall be president, and all of whom must be shareholders. The treasurer shall be appointed by the directors, and shall hold his office for two years and until his successor shall be appointed and qualified.’

      “ Said plaintiff further says : That at a special meeting of the board of directors of said association held on the twenty-seventh day of July, A. D. 1882, the Citizens’ National Bank of Galion, Ohio, tendered its resignation as treasurer of said Citizens’ Building Association of Galion, Ohio, and that one James H. Green was duly elected by the board of directors of said association, as treasurer of said association for a period of two years, and that said James H. Green gave bond according to law, and which said bond was duly approved and accepted by said board of directors, and he, the said James H. Green, entered upon the discharge of his duties as treasurer of said association.

      “ That on the ninth day of September, A. D. 1882, at a special meeting of the board of directors of said association, James H. Green, treasurer of said association, and George Snyder, secretary of said association, were authorized and instructed by the board of directors of said association to make a demand of the former secretary of said association, J. G. Meuser and his bondsmen, S. G. Cummings and F. Kuhn, that they pay over to the said James H. Green, treasurer of said association, and George Snyder, secretary of said association, for said plaintiff, the money which came into his hands by virtue of his office as secretary of said association, between the sixth day of April, A. D. 1880, and the twentieth day of January, A. D. 1881, to-wit: the sum of $2,488.

      “ That said James IT. Green, as treasurer of said plaintiff, and George Snyder, as the secretary of said plaintiff, and being the duly authorized agents of plaintiff, on the — day of September, A. D. 1882, demanded of said J. G Meuser, former secretary of said association, that he pay over to them, for the use of said plaintiff, the said sum of $2,488, the amount of money which came into his hands by virtue of his office of secretary of said association during the period aforesaid. That said J. G. Meuser neglected and refused to pay over for the use of said plaintiff said sum of $2,488 or any part thereof; that said plaintiff then, through its authorized agents James H. Green and George Snyder, demanded of said defendants, S. G. Cummings and F. Kuhn, as sureties of said J. G. Meuser on said bond, that they pay over for the use of said plaintiff the same of $2,488, the amount received by said J. G. Meuser as secretary of said association during the period aforesaid ; that said S. G. Cummings and F. Kuhn neglected and refused to pay over said sum of money or any part thereof, though often requested so to do; that the said defendants, upon demand made, refused to deposit said sum of money or any part thereof in the treasury of said association or to pay the same over to the treasurer of said association or its proper officers, or to pay to said plaintiff said money so received by said J. G. Meuser, as secretary of said association, although often requested so to do. Whereby an action has accrued to the plaintiff against said defendants on said written obligation according to the conditions therein written. Wherefore, the said plaintiff demands a judgment against said defendants, for said sum of $2,488, with interest thereon from the twentieth day of January, A. X). 1881.”
    A demurrer to the petition was filed by the defendants in error, S. G. Cummings and F. Kuhn, sureties on the aforegoing bond, on the ground that the petition did not state facts suffiicient to constitute a cause of action against them; which demurrer was sustained, and judgment thereupon rendered in their favor, against the building association. On petition in error by the plaintiff, that judgment was affirmed by the circuit court, and this proceeding is instituted to reverse the judgments of the circuit court and court of common pleas.
    J W. Coulter and O. W. Aldrieh, for plaintiff in error.
    It is not essential, to charge a surety on a bond, that his name appear in the body of the instrument, if he sign, seal and deliver it as his bond. Brandt Sur. & Guar. sec. 15; Partridge v. Jones, 38 Ohio St. 375; McLain v. Simington, 37 Ohio St. 484; Knisely v. Shenberger, 7 Watts, 193; Pequawkett Bridge v. Mathes, 7 N. H. 230; Martin v. Dortch, 1 Stew. (Ala.) 479; Williams v. Greer, 4 Hayw. (Tenn.) 239; Campbell v. Campbell, Brayt. (Vt.) 38; Stone v. Wilson, 4 McCord, (S. C.) 203; Joyner v. Cooper, 2 Bailey, (S. C.) 199; Fulton’s Case, 7 Cow. 484; Bartley v. Yates, 2 Hen. & M. (Va.) 398; Smith v. Crooker, 5 Mass. 538; Vanhook v. Barnett, 4 Dev. (N. C.) 272; Blakey v, Blakey, 2 Dana, (Ky.) 463; Leith v. Bush. 61 Pa. St. 395; Fournier v. Cyr, 64 Me. 32; Danker v. Atwood, 119 Mass. 146; Sheid v. Liebshultz, 51 Ind. 38; Ahrend v. Odiorne, 125 Mass. 50; Howell v. Parsons, 89 N. C. 230; Grimmet v. Henderson, 66 Ala. 521.
    Several persons may adopt a single seal, and the question whether or not they have done so, is a question of fact for the jury, to be determined from the circumstances of the case. Pickens v. Rymer, 90 N. C. 282; Pequawkett Bridge v. Mathes, 7 N. H. 230; Northumberland v. Cobleigh, 59 N. H. 250; New Orleans etc. R. Co. v. Burke, 53 Miss. 200; Hollis v. Pond, 7 Humph. (Tenn.) 222; Argenbright v. Campbell, 3 Hen. & M. (Va.) 144; Lord Lovelace’s Case, Sir W. Jones, 268; Bradford v. Randell, 5 Pick. 496; Mackay v. Bloodgood, 9 John. 285.

      The words “ bond,” “ obligate ” and “ writing obligatory,” necessarily mean a sealed instrument. Cantey v. Duren, Harp. (S. C.) 434; Taylor v. Glaser, 2 Serg. & Rawle, 502; Denton v. Adams, 6 Vt. 40; Deming v. Bullitt, 1 Blackf. 241; Skinner v. McCarty, 2 Porter, (Ala.) 19; Harman v. Harman, 1 Baldw. 129.
    The defense cannot be made by demurrer when the allegation is that the defendants executed a sealed instrument. Setting out the instrument in the petition does not do more than would be done at common law by ordinary oyer and then demurring ; and it is held that a demurrer must be overruled and the defense made by plea or answer when there is any seal upon the instrument. Bohannons v. Lewis, 3 T. B. Mon. 377; Hollis v. Pond, 7 Humph. (Tenn.) 222; Yarborough v. Monday, 3 Dev. (N. C.) 420. Though if none appeared a demurrer would be the proper remedy. Chilton v. People, 66 Ill. 501.

      Finley, Baton & Bennett and J. H. Collins, for defendants in error.
    1. This being an official bond, unlike an undertaking, is required to be under seal, and falls directly within the principle laid down in Stevens v. Allmen, 19 Ohio St. 485, which case has not been qualified, as claimed by counsel for plaintiff in error, in McLain v. Simington, 37 Ohio St. 484 and Partridge v. Jones, 38 Ohio St. 375.
    In both the latter cases the instrument upon which suit was brought was an undertaking which, unlike a bond, was not required to be under seal.
    An undertaking is not a bond. McLain v. Simington, 37 Ohio St. 486.
    A code undertaking need not be under seal; it ranks as a parol contract merely. State v. Boring, 15 Ohio, 507; Bank v. Smith, 5 Ohio, 222; Fullerton v. Sturges, 4 Ohio St. 529.
    2. It is not directly averred in the petition that the money came into the hands of the secretary of the association by virtue of his office. This is important because the defendants (if they are held to have executed the bond) have the right to insist upon a strict construction of their obligation, which is that they shall be holden for such moneys “ as may come into his hands by virtue of his office.” Therefore a petition which does not so state is bad on demurrer.
    It is true that the petition elsewhere argumentatively and inferentially sets out that the money came into his hands by viriue of his office, “but such pleading is objectionable on demurrer.” Boone Code Pl. 5; Story Eq. Pl. sec. 4, n.

    3. The obligation of the defendants as sureties is fixed by the instrument itself, and cannot be enlarged or changed. Sureties have the right to stand on the strict letter of their obligation, which cannot be enlarged, nor by implication extended to something not covered by the strict language of the contract itself. State v. Medary, 17 Ohio, 565; Lang v. Pike, 27 Ohio St. 501; State v. Cutting, 2 Ohio St. 1; McGovney v. State, 20 Ohio, 93.
    The obligations which the sureties undertook that their principal should perforin were that he should deposit the moneys received with the Citizens’ National Bank of Galion (which by the constitution was created perpetual treasurer of the association), within twenty-four hours after their roceipt. They undertook to be responsible for nothing more.
    They did not agree that he should pay to some one who might be appointed to receive the money; nor that he should pay on demand to an officer created after his term of office expired and unknown to the constitution as it existed at the time the bond was signed. They did not agree that he would turn the money over to his successor in office. They only agreed that he should deposit the money in bank within twenty-four hours of receiving it. It is not averred in the petition nor claimed by the plaintiff that the bond was broken in this respect.
   Dickman, J.

The first question presented for our consideration is, was it material to the validity of the bond, as against the sureties, that they should be named in the body of the instrument. It is clear from the terms of the instrument, that it was the intention to hold and firmly, bind those who might duly execute it. In Partridge v. Jones, 38 Ohio St. 375, it is held that to charge one as obligor, who has signed a bond or written undertaking, it is not necessary that his name should appear in the body of such instrument, provided the intention that he shall be so charged appears clearly from its terms, taken in connection with the circumstances attending its execution. And the language of Brinkerhoff J. in Stevens v. Allmen, 19 Ohio St. 485, indicating a contrary rule, has been disapproved in McLain v. Simington, 37 Ohio St. 484. Indeed the principle is established by numerous adjudications, that if a surety, in witness of his obligation to perform certain covenants and conditions, has affixed his hand and seal to the instrument, and delivered it as his bond, it is adequate to bind him, although his name is not mentioned in any part of the body of the bond, but a blank intended for it is left unfilled. Howell v. Parsons, 89 N. C. 230; Vanhook v. Barnett, 4 Dev. (Law), 268; Danker v. Atwood, 119 Mass. 146; Ahrend v. Odiorne, 125 Mass. 50; Scheid v. Liebshultz, 51 Ind. 38.

The Building association, by virtue of the act of May 5, 1868 (65 Ohio L. 137), was organized as provided in sections 63, 64 and 65 of the act of May 1, 1852 (S. & C. 304); and section 64 provides that the officers appointed by the directors of the corporation, shall, when required by the by-laws, give bond to the satisfaction of the directors, for the faithful discharge of the trust committed to them.” It is contended that by the word bond, as used in the statute, is to be understood a common law bond, with its most indispensable characteristic, a seal, and not an undertaking as provided for in the code, and which is not required to be under seal. It is claimed that although S. G. Cummings and F. Kuhn signed the instrument, there being no seal or scroll affixed to either of their names, it is not their bond, and therefore they are not liable as sureties.

There is but one seal to the bond signed by the defendants in error; but, it is not essential that there should be as many separate seals annexed to a bond as there are signers, as two or more among any number of signers may adopt one seal, whereby the obligation will become an instrument sealed by all. As it was said in Lord Lovelace’s Case (Sir. Wm. Jones, 268): “If one of the officers of the forest put one seal to the rolls, by assent of all the verderers, regarders, and other officers, it is as good as if every one had put his several seal, as in case divers men enter into an obligation, and they all consent and set but one seal to it, it is a good obligation of them all.” See Perkins, sec. 134; Shep. Touch. 55; Ball v. Dunsterville, 4 T. R. 313; Mackay v. Bloodgood, 9 John. 285; New Orleans, etc. R. R. Co. v. Burke, 53 Miss. 200, 231.

It is argued that one seal may be adopted by several signers only when the names of all are inserted as obligors in the body of the instrument; but we do not think that the rule is to be thus limited, nor is the rule to be treated as inapplicable to the class of instruments denominated official bonds. In Pequawkett Bridge v. Mathes, 7 N. H. 230, the bond declared on was signed by the four individuals who were defendants in the suit, and also by Young who was the last signer; but there were only four seals affixed to the signatures, and Young’s name was not mentioned in the bond, though it appeared to have been once inserted, and to have been afterwards erased. But the bond contained the usual allegation, “ sealed with our seals,” and the court was of opinion, that when Young put his name to the instrument, he must be considered as having adopted one of the seals already affixed.

And in Bradford v. Randall, 5 Pick. 496, an assessors’ warrant was made out and signed by the assessors, with one seal affixed while they were together, and concluding with, “ given under our hands,” without adding our seals.” The court drew a distinction between private deeds and warrants executed by virtue of some special authority, holding it necessary in the latter case that the authority should be strictly pursued. Morton,.J., says: “ This brings us to the inquiry whether this warrant was sealed in the manner required by the statute. Assessors have no common seal. And the form of the warrant given in the statute clearly indicates that it should be under their several seals as well as signatures. But it contains no indication that their seals shall be on separate pieces of wax or wafer, any more than that they shall be on the same. The initials L. S. used in the form, may at least as well stand for locus sigillorum as for loci sigillorum.” See also Bank of Cumberland v. Bugbee, 19 Me. 27, an action of debt on the bond of a bank cashier; and Northumberland v. Cobleigh, 59 N. H. 250, an action of debt on the bond of the defendant, as collector of the plaintiff town.

Did the defendants in error adopt the seal or scroll affixed to the name of J. G. Meuser ? Whether they did or not, was a question of fact for the jury, to be determined upon proper issue joined, the burden being on the plaintiff to show the adoption. The defendants did not raise an issue of fact by plea of non est factum, or by answer denying that they sealed the writing sued on, but demurred to the petition, and admitted all allegations well pleaded. It was held in Northumberland v. Cobleigh, supra, that when the bond contains the usual attestation clause, “sealed with our seals,” the law will intend that all the signers adopt one seal. And in Bohannons v. Lewis, 3 T. B. Mon. 376, the language of the court is, “ When an instrument with one seal and two or more signers, is alleged to be sealed by all, the court on demurrer is not authorized to infer from there being but one seal, and f.wo or more signers, that but one in fact sealed the instrument; and the party who contends that it is not his' seal, must reach the fact by way of plea, controverting the allegation ; and as one seal may be the seal of many signers, the court, from the bare inspection of the paper and declaration cannot decide that it is the segl of one only.”

It is alleged in the original petition that J. G. Meuser, S. G. Cummings and E. Kuhn, “made their certain‘ writing obligatory ” ; that it was given by Meuser to and accepted by the board of directors of the Building Association. The bond itself sets forth that the obligors thereby bound themselves, their heirs and legal representatives — with the recital added, “ sealed with our seals.” The petition further alleges that Meuser, after his election as secretary and before entering upon the trust, executed his bond, with the defendants Cummings and Kuhn as sureties; and that by the terms and coirditions of the bond, the defendants bound themselves in the sum of $6,000 that Meuser should faithfully perform the duties pertaining to the office of secretary of the association, etc. The language of the bond, -when considered in connection ‘with the allegations of the petition, may reasonably be said to imply that the instrument was sealed by all who signed it. The error assigned in Penson v. Hodges, Cro. Eliz. 737, was, that the plaintiff declared that the defendant acknowledged himself bound by his writing obligatory,” without saying, sealed with his seal.” Gowdy, J., said, that the declaration was well enough, for when the plaintiff saith, by his writing obligatory he acknowledged himself to be bound,” all necessary circumstances are intended to concur, viz., the sealing and delivering of the deed; for otherwise it is not a writing obligatory. The declaration in Denton v. Adams, 6 Vt. 40, did not, in terms, allege that the bond was signed and scaled, but it declared on the defendant’s writing obligatory. These words, it was held, imply in law a deed, and include sealing. And Sargeant Williams in his notes to Saunder’s Rep., vol. 1, p. 291, says that there are some words of art, such as writing obligatory, which of themselves, import that the instrument was sealed by the party, without an averment of sealing. If therefore the declaration states that J. S. by his writing obligatory acknowledges, etc., without averring that he sealed, still the declaration is good.” See also Ashmore v. Rypley, Cro. Jac. 420. In Hollis v. Pond, 7 Humph. (Tenn.), 222, there were four seals to the bond, and nine signatures. The declaration alleged that all the parties sealed the covenant. The defendants craved oyer of the covenant and demurred. It was the opinion of the court that where there is a greater number of signatures than seals, it must be doubtful on the face of the paper’, whether it be not the deed of all the parties; but the probability that it is the deed of all, is increased where the instrument uses the words, “ witness our hands and seals,” which may be looked to as a circumstance to explain the intention of the parties. But,” says Green, J., to have sustained the demurrer would have excluded all investigation as to the question, whether the parties adopted the seals of other obligors; and would have been a determination that they did not. This the court should not do, where the question is doubtful, and must depend on proof. The demurrer was, therefore, properly overruled.”

The case as reported, shows no conflict between the decision in Stevens v. Allmen, supra, and the views we have advanced in reference to the sealing of bonds. We find no copy or full déscription of the obligation upon which the action against Allmen was founded, and can not, therefore, determine whether its language would import that the bond was sealed by all who signed it. Indeed, it does not appear in the case, that the question as to the adoption of the seals of the original sureties by the subsequent signers, was in any manner presented or considered.

And it is proper here to observe that whether, upon all the allegations in the original petition there should not have been an issue of fact for the jury as to the adoption or otherwise by S. G. Cummings and E. Kuhn of the seal opposite the signature of J. G. Meuser, is a question which, as we are advised, was not urged upon or considered by the circuit court, in affirming the judgment of the court of common pleas and sustaining the demurrer to .the petition.

It is urged in argument that it is not directly averred in the petition that the money came into Meuser’s hands by virtue of his office as secretary, nor, that there was a failure to deposit the money in bank within twenty-four hours of receiving it, and that, therefore, the demurrer was properly sustained. We think it unmistakably appears, from allegations in the petition, that the sum of $2,488, was received by the secretary between April 6, 1880 and January 20, 1881, in his official capacity; and that the assignment of breach of condition in the bond was sufficiently certain to show the subject matter of complaint, and to apprise the defendants what they were called upon to answer. State v. Caffee, 6 Ohio, 150.

Judgment of the court of common pleas and circuit court reversed, and cause remanded.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Railway Company v. Schneider.

      Railroad companies — Negligence—Street Crossings — Gatemen.
    1. Where a railroad company uses the tracks of its road across a generally traveled public street in a populous town or city, for its convenience in the switching of trains, cars and locomotives, and the crossing is thereby rendered exceptionally dangerous, it is bound to exercise care proportioned to the increased danger arising from such use of its tracks, to avoid injury to persons using the crossing, and should, in the exorcise of such care, as a reasonable precaution for their safety, and means of preserving the legitimate uses of the street, maintain flagmen, or gates and gatemen, at such crossing, or adopt other equally adequate measures for that purpose.
    2. A railroad company which, in operating the road with the company owning the same, under an agreement to pay the latter a specified sum, yearly, in excess of the amount to which it is entitled out of the joint earnings, for the use of its tracks and the cost of switching, uses the tracks at such crossing where gates and gatemen are maintained, is bound to the same care in the use thereof as the company owning the road, and should anticipate the reasonable effect of the gates, and the gatemens’ conduct in their management, on persons approaching the crossing or about to cross, and operate the road at that place, having due regard to such probable effect, and exercise care proportioned to the probable danger to persons using such crossing under those circumstances ; and if, while so using the tracks of the road it accepts the services, of the gatemen employed by the company owning the road, instead of employing gatemen of its own, they become, for the time being, its servants, for whose negligence it is responsible; and if it does not accept their services, its duty is to place competent gatemen at such crossing, and is responsible for its omission to do so.
    3. When gatemen are maintained at such crossings, it is their duty to observe the tracks and know when, on account of trains or engines thereon? it becomes dangerous for persons to cross, and when it is so, to close the gates and keep them closed to prevent persons from going upon the tracks so long as the danger continues; and when the tracks are clear, or persons may cross without danger from passing cars and locomotives, then to open the gates and keep them open to enable persons to cross, so long as it is safe for them to do so, but no longer. Persons approaching the crossing or about to cross have the right to presume, in the absence of knowledge to the contrary, that the gatemen are properly discharging their duties, and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gatemen of their duties. Hence an open gate with the galeman in charge is notice of a clear track and safe crossing, and in the absence of other circumstances, when the gates are open and the gatemen present, it is not negligence in persons approaching the crossing with teams to drive at a trot, or pass on to the tracks through the open gates without stopping to listen, though the view of the tracks on either side of the crossing is obstructed; nor in such case is their failure, when at a distance of twenty-five feet from the track, to look for locomotives one hundred and fifty feet or more from the crossing, negligence, though they could have been seen.
    (Decided May 1, 1888.)
    Error to the Circuit Court of Hamilton County.
    On the 10th of September, 1881, Henry Schneider, while driving his team over the railroad tracks across Freeman street in the city of Cincinnati, was killed by a locomotive run, managed, and operated, by the Cleveland, Columbus, Cincinnati and Indianapolis railway company. His widow, Mary Schneider, was appointed administratrix of his estate and brought her action in the superior court of Cincinnati against the railway company, under the statute, for damages, avering that his death was caused by the negligence and wrongful conduct of the conpany’s servants, and that he was without fault.
    The answer controverted all the allegations of the petition except that the defendant is a corporation under the laws of Ohio.
    The plaintiff obtained a verdict for six thousand dollars, but, upon the hearing of a motion for.a new trial filed by the defendant, consented to remit two thousand dollars and accept judgment for four thousand dollars. The motion was thereupon overruled and judgment entered accordingly. A bill of exceptions was duly taken purporting to set out all the evidence, the charge of the court to the jury, certain instructions requested by the defendant which were refused, and certain other instructions requested by the defendant which were given. One of the gx’ounds of the xnotion for a new trial was misconduct on the pax’t of the plaintiff in the action, upon which affidavits were read by both parties, which affidavits are by reference made part of a seperate bill of exceptions taken on the overruling of the motion.

      ‘ The railway company prosecuted error to the district court, and at the April term, 1885, the circuit court affirmed the judgment of the superior court, and the reversal of those judgments is now sought in this court.
    The errors relied on relate to the charge of the court, its refusal to give in charge the instructions requested, and misconduct of the plaintiff in the progress of the trial. Such further statement with reference to them as is deemed material will appear in the opinion.

      Mathews, Holding & Greve and H. H Poppleton, for plaintiff in error.
    1. The court erred in refusing to give the first instruction as requested by the plaintiff in error.
    A railway track is a place of danger, and must be approached as such by one traveling a highway which crosses it, and he is negligent who fails to approach it as a place of danger.' If the defendant in error approached the crossing on a trot or at such speed as to be unable to stop his horses before getting upon the track he did so at his own peril of being injured by collision with the engine, and the jury should have been so charged. Glendening v. Sharp, 22 Hun, 78; Haring v. N. Y. & E. R. Co., 13 Barb. 9; Tuckeer v. Duncan, 4 Woods, 652; Fletcher v. A. & P. R. Co., 64 Mo. 484.
    A traveler who drives upon a railroad track without taking that precaution to ascertain if a train be approaching which the character of the crossing makes necessary to avoid injury, is guilty of negligence in law, although the servents of the company may have been negligent in the management of the train, and the traveler, in his confusion and in the excitement of the moment, rushed more heedlessly into greater peril. Chicago & N. W. R. Co. v. Hatch, 79 Ill. 137; Chicago, B. & Q. R. Co. v. Damerell, 81 Ill. 450; Schofield v. C. M. & St. P. R. Co., 8 Fed. Rep. 488; Murray v. P. R. R. Co., 31 La. Ann. 490; Tully v. F. R. Co., 134 Mass. 499; Wheelwright v. B. & A. R. Co., 135 Mass. 225; Ormsbee v. B. & P. R. Co., 14 R. I. 102; N. O. & N. G. R. Co. v. Mitchell, 52 Miss. 808; Parker v. W. & W. R. Co., 86 N. C. 221; Mahlen v. Lake S. & M. S. R. Co., 49 Mich. 585; Spencer v. U. & S. R. Co., 5 Barb. 337; Allyn v. B. & A. R. Co., 105 Mass. 77; Kelley v. H. & St. J. R. Co., 75 Mo. 138.
    It is fatal to a right of action if a traveler approach a railway crossing at such speed as to be unable to stop his horses before getting upon the track. Grippen v. N. Y. Cent. R. Co., 40 N. Y. 34; Grows v. M. C. R. Co., 67 Me. 100; Mantel v. C. M. St. P. R. Co., 33 Minn. 62; Brown v. M. & St. P. R. Co., 22 Minn. 165; Salter v. U. & B. R. Co., 75 N. Y. 273.
    If deceased forgot to look until he got too near to avoid the injury, that fact will not excuse his want of care in driving upon the track on a trot. B. & O. R. Co. v. Whitacre, 35 Ohio St. 627.
    In review of the evidence that the deceased drove upon the track on a trot, the first request to charge was warranted and it was error to refuse it. Wilds v. H. R. R. Co., 24 N. Y. 443; Little Miami R. Co. v. Wetmore, 18 Ohio St. 134; Salter v. U. & B. R. Co., 75 N. Y. 273; Heileman v. N. P. R. Co., 49 Pa. St. 63.
    2. The gateman was not the servant of the defendant either by contract or by operation of law, but we stand ready to admit that if it were a duty of the plaintiff in error to place a flagman at that street crossing to warn the deceased of the approach of the locomotive which caused the injury, then the flagman of the. C., H. & D. R. Co. was for that purpose the servant of plaintiff in error and for his acts it is responsible.
    But, au eontraire, if there were no duty upon the part of defendant to place a flagman at that crossing, the absence of a flagman was no omission of duty, and, consequently, not negligence on its part, and it is not responsible for the acts of the hired servant of the C., H. & D. R. Co. in doing that which it did not authorize, or in failing to do that which he was by his master directed to do. Cooley on Torts, 659.
    There was no statutory duty to place a flagman at that crossing, but there is a common law rule which renders it incumbent upon the plaintiff in error to exercise that care and prudence in the management of its trains which is commensurate with the danger of injury to others, to be reasonably apprehended. But if that rule was satisfied by a proper and careful management of its engines, it is not to be held responsible because it did not go further and notify deceased it was doing so. and it is not to be left to a jury to say that it was its duty to place a man at the crossing to notify deceased to be careful.
    The common law does not impose upon railroad companies, while operating their trains with due care upon their railroad tracks, the duty of warning, by signals or means other than those prescribed by positive statute, persons crossing such track. Beisiegel v. N. Y. Cent. R. Co., 40 N. Y. 9; Grippen v. N. Y. Cent. & H. R. R. Co., 40 N. Y. 34.
    The C., H. & D. R. Co. undoubtedly had the right to station a flagman at Freeman street to warn travelers, if it so desired; but it was a precaution voluntarily assumed and could be abandoned at any time. And, as was said by Welles, J., in Skelton v. L. & N. W. R. Co., L. R. 2 C. P. 631: “ A mere failure to perform a self-imposed duty is not actionable negligence.”
    The C., H. & D. R. Co. had exclusive control of the flagman, and defendant is not liable for his acts. Sprague v. Smith, 29 Vt. 426.
    The plaintiff in error is not liable for the negligent acts of the C., H. & D. R. Co. Fletcher v. B. & M. R. Co., 1 Allen, 9; Clymer v. C. R. Co., 5 Blatchf. 317.
    3. The court erred in refusing to give the third instruction to the jury as requested.
    It was in hypothetical form and conformed to the suggestion' of the court in Bellefontaine Railway Co. v. Snyder, 24 Ohio St. 678, and did not assume the existence of the fact that deceased could have seen the engine when twenty-five feet distant from the track on which it was running, but left it to the jury to say whether he could or could not have seen it at that distance, and whether or not if he had, it was in time to have enabled him to avoid the injury he received.
    It appeared by the testimony that if the deceased had looked he might have seen the engine at a much greater distance than the request assumed. In many cases where facts such as these have been established, the higher courts have held it was such evidence of contributory negligence that its submission to a jury was error. Cleveland v. New Jersey Steamboat Co., 89 N. Y. 627; Wendell v. N. Y. Cent. & H. R. R. Co., 91 N. Y. 420; Becht v. Corbin, 92 N. Y. 658; Hoag v. Railroad Co., 85 Pa. St. 293; Penn. R. Co. v. Fries, 87 Pa. St. 234; Kan. Pac. R. Co. v. Butts, 7 Kan. 308; Trow v. Vermont C. R. Co., 24 Vt. 497; Berg v. Chicago etc. R. Co., 12 C. L. J. 67.
    If deceased had an opportunity, nothing will excuse him from looking. If he could have seen the engine in time to have avoided the collision his failure to look was negligence. N. P. R. Co. v. Heileman, 49 Pa. St. 63; Baxter v. T. & B. R. Co., 41 N. Y. 502; T. & W. R. Co. v. Goddard, 25 Ind. 185; Schofield v. C., M. & St. P. R. Co., 114 U. S. 615; I. C. R. Co. v. Goddard, 72 Ill. 568; Cordell v. N. Y. Cent. & H. R. R. Co., 75 N. Y. 333; Foy v. P., W. & B. R. Co., 47 Md. 76; R. & C. R. Co. v. Ritchie, 102 Pa. St. 425; Stubley v. L. & N. W. R. Co., L. R. 1 Exch. 13; Salter v. U. & B. R. Co., 75 N. Y. 277; Reynolds v. N. Y. Cent. & H. R. R. Co., 58 N. Y. 248; Carroll v. R. R. Co., 12 Week. Notes Cas. 348; Starry v. D. & S. W. R. Co., 51 Iowa, 419; State v. Maine Cent. R. Co., 76 Me. 357; Lesan v. Maine Cent. R. Co., 77 Me. 85; C. C. C. & I. R. Co. v. Elliott, 28 Ohio St. 352; Spencer v. Ill. Cent. R. Co., 29 Iowa, 55; Chicago & R. I. R. Co. v. McKean, 40 Ill. 218; Artz v. Chicago R. I. & P. R. Co., 34 Iowa, 154.
    4. The court erred in refusing to give the fourth instruction as requested.
    Negligence is the absence of care according to circumstances ; and the care deceased should have exercised to avoid the injury should have been commensurate with the danger to be avoided, and his duty should have been dictated and is to be measured by the exigencies of the occasion. If his view were unobstructed there may have been no occasiou to listen; and if he were injured by the passing locomotive, which he might have heard had he listened, presumptively he was guilty of contributory negligence; and as this presumption was not repelled, a recovery from the injury he received cannot be bad. If his view were so obstructed that he could not see, and the perils of crossing Avere great, he was called upon to exercise a greater amount of care than where the circumstances were less perilous. He should have stopped to listen. Chicago, B. & Q. R. Co. v. Harwood, 80 Ill. 88; Schwartz v. H. R. Co., 4 Robt. 347; Penn. R. Co. v. Beale, 73 Pa. St. 504; Haas v. Grand R. & I. R. Co., 47 Mich. 401; Chase v. Maine Cent. R. Co., 5 Atl. Rep. 771; Fleming v. West. Pac. R. Co., 49 Cal. 253; Chase v. Maine Cent. R. Co., 77 Me. 62; Penn. R. Co. v. Morel, 40 Ohio St. 338; Mynning v. D., L. & N. R. Co., 26 N. W. Rep. 514; Haight v. N. Y. Cent. R. Co., 7 Lansing, 11; Rothe v. Milwaukee & St. P. R. Co., 21 Wis. 256; Tolman v. Syracuse, B. & N. Y. R. Co., 98 N. Y. 198; Lake S. & M. S. R. Co. v. Miller, 25 Mich. 274; Union Pac. R. Co. v. Adams, 33 Kan. 427; Carlin v. Chicago, R. I. &. P. R. Co., 37 Iowa, 316; Benton v. Central Railroad of Iowa, 42 Iowa, 192; Connelly v. N. Y. Cent. & H. R. R Co., 88 N. Y. 346; Woodard v. N. Y., Lake Erie & W. R. Co., 106 N. Y. 369.
    It is not only essential in a case of this kind to entitle the plaintiff to recover that he should look and listen; the rule is that he must also stop if that be reasonably necessary to discover danger. And he is not relieved from this duty though the flagman motioned him to come on, or failed to warn him not to come on. Philadelphia & R. R. Co. v. Boyer, 2 A. & E. Rwy. Cas. 172; Lake Shore & Mich. S. R. Co. v. Miller, 25 Mich. 274; Zimmerman v. Hannibal & St. J. R. Co., 71 Mo. 476; Penn. R. Co. v. Beale, 73 Pa. St. 504; Haas v. Grand Rap. & I. R. Co., 47 Mich. 401; Schaefert v. Chicago, M. & St. P. R. Co., 62 Iowa, 624, 627, 628; Cent. Pass. R. Co. v. Kuhn, 6 S. W. Rep. 441; Balt. & O. R. Co. v. Whitacre, 35 Ohio St. 638; Philadelphia & R. R. Co. v. Killips, 88 Pa. St. 405; Seefeed v. C., M. & St. P. R. Co., 35 N. W. Rep. 278; Marty v. C., St. P., M. & O. R. Co., 35 N. W. Rep. 670; Nosler v. Chicago, B. & Q. R. Co., 34 N. W. Rep. 850.
    The fact that there are obstructions to the view does not relieve a man of taking all precautions. It AArould be a singular state of law that made it obligatory in a case where the country is open and there is no difficulty in detecting the approach of a train that he should look and listen, and yet permit him where the crossing is very dangerous and there are obstacles in the way of observations to rush blindly across, because forsooth the crossing is so dangerous that it is difficult to make observations. These obstacles only make it the more obligatory upon him to be careful, and where one means of detecting the presence of danger is inadequate, to use another. Union Pac. R. Co. v. Adams, 19 A. & E. Rwy. Cas. 376; Balt. & Ohio R. Co. v. Hobbs, 19 A. & E. Rwy. Cas. 337; Haas v. Grand Rap. & I. R. Co., 47 Mich. 401; Schaefert v. Chicago, M. & St. P. R. Co., 62 Iowa, 624; Balt. & O. R. Co. v. Whitacre, 35 Ohio St. 635; Penn. R. Co. v. Morel, 40 Ohio St. 338; Young v. N. Y., L. E. & W. R. Co., 14 N. E. Rep. 434.
    The obligation to look and listen cannot be altered by the fact that you cannot see a train until you get very close to the track. Wilds v. Hudson R. R. Co., 29 N. Y. 315; Wilds v. Hudson R. R. Co., 24 N. Y. 430; Wilcox v. Rome, W. & C. R. Co., 39 N. Y. 358; Beisiegel v. N. Y. Cent. R. Co., 40 N. Y. 9; Reynolds v. N. Y. Cent. & H. R. R. Co., 58 N. Y. 248; Woodard v. N. Y., Lake Erie & W. R. Co., 106 N. Y. 369.

      Campbell & Bettman, for defendant in error.
    1. The charge given by the court fairly and fully stated the law upon the point to which the first request of the plaintiff1 in error related, although in different form. It had the advantage of being more concise. Hence the court did not err in refusing to give the first charge requested. Bond v. State, 23 Ohio St. 349.
    The charge requested contained unsound propositions of law, and was prayed for as an entirety. In such case the request may be refused if a portion of it is inadmissible. Walker v. Dewlin, 2 Ohio St. 593; Tabler v. State, 34 Ohio St. 127, 133.
    The charge refused contained, among some sound propositions, the following: That if the decedent approached the crossing on a trot, then he was guilty of contributory negligence. In other words, to trot one’s horses as one nears the track, is negligence in law — negligence per se.

    The railroad company, in approaching and crossing a highway, is not, in the absence of statutory prohibitions, limited to any particular speed. No rate of speed is negligence per se, but when unusual, may be considered with other facts as bearing on the degree of care used. Pierce Railroads, 354. And so with the traveler. The jury must consider whether, under all the circumstances, he was j ustified in trotting his team. ’ It is only one circumstance and is for the jury to weigh. It is not so glaring an act as to exclude all other inference, but that of want of ordinary care. Since, therefor, as a matter of law, it is not contributory negligence to approach a crossing at a trot, the charge was properly refused and no error resulted therefrom.
    2. It is claimed that since the law did not impose upon the plaintiff in error the duty of giving warning through a flagman or gateman, and since the gateman was employed and paid by the C. H. & D. R. Co., that under no circumstances can he be regarded as the servant of the defendant; and further, that even if he were its servant, it was a precaution voluntarily assumed and could be be abandoned at any time.
    The gateman was the agent of the plaintiff in error at the time its trains passed his crossing. With its knowledge and asesnt he had been opening and shutting the gates for two years, at least, whenever its trains or engines passed; and to that extent and whenever such train or engine passed, he thereby became its servant. It had knowingly derived protection from his care, and it should now incur liability from his negligence. Mills v. Orange A. & R. Co., 2 McArthur, 314; Wood Law Mas. & Ser., sec. 7; Patterson Rail. Ac. Law, 138, 139; Wood Rail. Law, 1335.
    Where a flagman has been uniformly stationed by a railroad company at a street crossing, the negligence of the flagman to give warning and properly to discharge his duty, or in absenting himself from his post, is negligence imputable to the company. Sweeney v. Old Col. & N. R. Co., 10 Allen, 368, 377; Kissenger v. N. Y. & H. R. Co., 56 N. Y. 538;
      Dolan v. D. & H. C. Co., 71 N. Y. 285; Burns v. N. C. R. M. Co., 65 Wis. 312; P. C. & St. L. R. Co. v. Yundt, 78 Ind. 373; Penn. R. Co. v. Killips, 88 Pa. St. 413.
    3. The third request to charge would have practically amounted to an instruction to find for the defendant, although the inferences to be drawn from a failure to look at any particular distance may be many and conflicting. It was for the jury to determine whether the decedent exercised that care which the law required of him. Kellogg v. N. Y. Cent. R. R. Co., 79 N. Y. 72; Penn. R. Co. v. Bentley, 66 Pa. St. 33.
    The charge asked for a final and single conclusion from a fact, attaching to it an arbitrary and absolute importance, which fact was only a basis for a more ultimate fact and therefore of mere evidential value. The charge asked the jury to consider the fact as constituting negligence when, if of any bearing at all, it could only constitute evidence of negligence.
    4. The fourth request to charge has a double aspect. It takes from the jury the consideration of what a reasonable man should have done, and it also asks the court to charge, as a matter of law, that it is necessary for one crossing a track to stop and listen.
    The law in Pennsylvania seems to be that one is required as a matter of law to stop before crossing a railroad track while driving, and so it has been twice ruled in Missouri, each time by a divided court. But the great body of decisions is against the proposition. The rule is that a man, in approaching a track, must exercise ordinary care. To ask him. to stop would be .to demand extraordinary prudence. Kelley v. St. P. M. & M. R. Co., 29 Minn. 1, 4; Eilert v. Green Bay & M. R. Co., 48 Wis. 606; Kellogg v. N. Y. Cent. & H. R. R. Co., 79 N. Y. 72; Davis v. N. Y. Cent. & H. R. R. Co., 47 N. Y. 400; Dolan v. D. & H. C. Co., 71 N. Y. 285, 288; Mackay v. N. Y. Cent. R. Co., 35 N. Y. 75; Leaven, morth, L. & G. R. Co. v. Rice, 10 Kan. 426; Penn. R. Co. v. Frana, 112 Ill. 398; Duffy v. E. & N. W. R. Co., 32 Wis. 269; Spencer v. Ill. Cent. R. Co., 29 Iowa, 55; Hous. & T. C. R. Co. v. Wilson, 60 Tex. 142.
   Williams, J.

1. The refusal of the court to give in charge to the jury the first instruction requested by the railway company, is made the basis of an extended argument to show that it was denied the benefit of the proper rule of law on the subject of contributory negligence. Whether this is so, depends not only upon the accuracy of the instruction requested, but also upon the effect of the charge given.

The charge requested is as follows :

“ 1. It was the duty of the decedent, to approach the crossing at such a rate of speed as would enable him to stop promptly, to avoid danger, and if the decedent approached the crossing on a trot or at such rate of speed as prevented him from discovering the danger in time to avoid it, or prevented him from stopping promptly, or from turning his horses or as induced him to hurry across upon discovering the danger rather than attempt to stop, then he was guilty of contributory negligence, and the plaintiff cannot recover even though defendant's negligence, also contributed to the injury.''

The Court in its general charge on the subject said to the jury :

The deceased was bound to use the same care in protecting himself, that the defendant company was bound' to use, in seeing that no person came to injury by the management of its cars and engines. That is, he was bound to use such care and prudence as a reasonable and prudent man would use, in protecting himself against any injury. It was his duty to use his senses in approaching the railway track, to discover whether or not there was any train or locomotive approaching which might injure him; to make such reasonable use of his eyes and other senses as a reasonable and prudent man would make; and if by the use of them, he could have avoided the injury, then he cannot recover from the company. But if he exercised such care as a reasonable, prudent man would exercise, and if the defendant were guilty of neglect in the running of this engine, and the deceased was killed by reason of that, then the company is responsible.”

And at the request of the company the court further in- ' structed the jury:

“ That it is the duty of the deceased, in approaching the railroad crossing, to look for the railroad locomotive before attempting to cross; and if his failure contributed to the accident, he cannot recover, even though the defendant’s negligence also contributed to the injury.

“ Even though the fireman and engineer were guilty of neglect contributing to the injury, yet that did not absolve the deceased from exercising the precaution of looking and listening for the approach of trains at such point on Ereeman street, as would enable him to discover the approaching train or locomotive ; or from approaching the crossing at such gait as would enable him to control his horses promptly.”

The instructions given to the jury, omitted nothing of substance contained in the one refused, unless it be that “ if the deceased approached the crossing on a trot ” he was guilty of contributory negligence. Indeed the effect of the charge requested is, that it is negligence in law, for a person driving a team to approach at a trot, a railroad crossing under any circumstances.

It is undoubtedly true that persons approaching railroad crossings are bound to the reasonable and prudent exercise of their faculties to discover danger, and to the use of proper care to avoid injury; and, if the omission of either contributes to their injury they are generally without remedy. But whether they have so exercised their faculties and used such care must depend upon the particular circumstance; for instance, it has been held that the absence of the usual signboard of warning is a circumstance which may properly go to the jury to enable them to determine whether the person attempting to cross the railroad track has been guilty of such negligence as would defeat his recovery. The reason assigned is “ that if the traveler is a stranger to the crossing, the want of such warning would be calculated to mislead him into danger; and if he was familiar with the crossing, it might operate as a reminder of danger which he might otherwise forget.” And generally “when the question of contributory negligence depends upon a variety of circumstances from which different minds may arrive at different conclusions as to whether the plaintiff exercised proper care and caution, the question should be submitted to the jury under proper instructions.” Railroad v. Whitacre, 35 Ohio St. 627.

Approaching a railroad crossing by one driving a team at the speed of a trot, may not necessarily either interfere with the prudent use of his faculties, or prevent due care on his part in crossing. There may be crossings, much .used both by the railroad company and the travelling public, where it would be highly important that persons should cross over promptly and quickly. At the intersection of railroads and highways where trains are run at long intervals, and few persons travel the road, persons approaching, ordinarily can tell whether it is dangerous to cross, and easily govern their own conduct in crossing. But where several tracks, over which trains and engines are run many times every hour, cross a constantly traveled public street in a populous city, thronged with people and vehicles, unless some expeditious mode of crossing were devised, a confused and hopeless obstruction of the street would result. Hence, at such crossings gates are put up and gatemen maintained by railroad companies, as was the case at the crossing in question, as a means of safety to the people using the street and for the protection of the railroad companies. It is the business of the gatemen to watch the track, and when clear, to open the gates for persons using the street to cross; and upon the approach of locomotives or trains to close the gates and prevent persons and vehicles from crossing until the tracks are again clear. To persons in the street who are approaching the railroad tracks with a view to crossing, an open gate is notice that the track is clear, and that it is safe to cross; but as the gates were liable to be closed at any time, persons crossing would naturally understand they should not linger on the track, but pass over promptly and speedily. Therefore, for a person to drive in a trot onto the railroad tracks while the gates are open, instead of being negligence, might be- a high degree of care.

The evidence in this case very clearly shows that Freeman street, at the point it was crossed by the railroad tracks, was a public street of the city of Cincinnati, over, which people and teams of all kinds were constantly passing; that several tracks of the railroad were laid across it, which were by two compapanies used for shifting their cars and locomotives, and gates had been put up, and gatemen were maintained at the crossing; that at the time the deceased approached and drove onto the crossing the gates were open, and he drove onto the tracks through the open gate on a trot; and we think the court properly left it to the jury to determine whether the deceased under the circumstances of the case, used such care as a reasonable and prudent person would and ought; and the refusal of the court to charge the jury that he was guilty of contributory negligence, if he approached the crossing on a trot, was not error.

2. It is next contended that there was error in refusing to instruct the jury that:

“ If the jury find, that the gateman was an employe of the Cincinnati, Hamilton & Dayton Railroad Company, and under its control, and operated the gates while the trains of the defendant were passing, simply as the servant of the first-named company, then the defendant could not be charged with his negligence, unless after discovering his negligence it could by the exercise of ordinary care have prevented the effect of such negligence;” and in the charge given on that subject, which is as follows :

“There is one thing further which is to be said about the question as to the agents of the defendant. It is claimed that the defendant is not liable for the acts of the brakesman, gatekeeper, and perhaps other employes, because they were employes of the Cincinnati, Hamilton & Dayton Railroad Company, and not the employes of the defendant company. “If you find from the testimony, that the defendant, the Cleveland, 'Columbus, Cincinnati & Indianapolis Railway’ Company was occupying the tracks of the Cincinnati, Hamilton & Dayton Railway Company by an agreement between the two companies; that the engine which caused the injury, was the engine of the defendant company; and that the switch-men, gate-keepers, train dispatchers, and other officers and agents of the Cincinnati, Hamilton & Dayton Company, were, by reason of this agreement engaged in running, or aiding to run the locomotive of the defendant company, then, for the purposes of the movements of that locomotive on the track of the Cincinnati, Hamilton & Dayton Company, the officers and agents of the Cincinnati, Hamilton & Dayton Company engaged in that work, were the officers and agents of the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company.”

It appears from the record that a contract was made between the Cincinnati, Hamilton & Dayton Railroad Company and the Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company, in 1876, the seventh section of which only was put in evidence, and which reads as follows :

Seventh. The business of said two lines ®f railroad shall be conducted so as to preserve the existing relations of each with eastern and western connecting roads, and to develop to the fullest extent the business resources of each line; all passenger trains shall be run to and from the Cincinnati depot, party of the first part, and for the use of the same, with the tracks, side tracks thereto and yards for passenger cars west of Millcreek, and for the cost of switching, the party of the first part, shall be allowed and paid by the party of the second part, in excess of the amount to which each shall be entitled out of the joint earnings, annually the sum of five thousand dollars, payable monthly.”

There was evidence tending to show that the gate at the Freeman street crossing was put up by the former company, and that the gateman was employed by that company, but the engines and trains of the latter company were run and controlled by its own servants and employes, and that the engine which collided with the wagon of the deceased when he was killed, was-4o run and controlled; and as the negligence charged against the defendant by the plaintiff in her petition consisted in carelessly running the locomotive and managing the crossing, it became a material question whether the defendant, could be made responsible for any negligence of the gate-man while it was using and operating the railroad. The whole of the agreement between the two companies is not produced, and it was impossible for the court from the fragment that was introduced in evidence to construe it, or properly determine its effect or the relation really existing between the companies. From that part of the contract contained in the record, it appears that each company had the right to the equal and joint use of the tracks and depot, and the defendant was to pay the other company for the use of the same with the side tracks and yard, and for the cost of switching, five thousand dollars per year in excess of the amount to which it should be entitled out of the joint earnings. "What the arrangement was in regard to the servants or employes of the two companies is not shown. Whether they were to be paid out of the joint earnings, and be under the joint control of the two companies or otherwise, does not appear from that part of the agreement in the record; and the evidence on the subject consisted of the usage and conduct of the companies. It would seem, therefore, that the court properly left it to the jury to determine as a question of fact, whether the defendant was using the tracks of the other company under an agreement with it, and the gate keeper and other employes of that company were, by reason of the agreement, aiding to run the locomotive, of the defendant which caused the injury. If so, they became, by virtue of the agreement, the servants and employes of the defendant, and it became liable for their negligence. The fact that the gateman was an employe of the Cincinnati, Hamilton and Dayton Railroad Company, and was under its control and so operated the gates while the defendant’s trains were passing, does not exclude the idea that by virtue of the agreement between the two companies, he may also have been then equally under the control of the defendant.

But we do not care to rest the decision of this question solely or mainly upon the foregoing considerations. It is generally held that railroad companies, unless required by statute, are not bound to place gates or flagmen at highway crossings, except under special circumstances which render the precaution necessary for tbe public safety. The duty, it is said, does not arise merely from the number of persons who use the crossing, but it may be created by an exceptionally dangerous mode of crossing adopted by the companies for their own convenience. Peirce on Railroads, 352 and cases cited.

“A railway company is not as a rule, in the absence of a statute requiring it, or of an ordinance of a municipal corporation, bound to maintain gates at a crossing, or keep a flagman there to warn travellers of the approach of trains. But under the maxim sio utere tuo, etc., instances may arise where this duty is cast upon them, or of providing some other equally safe mode, by reason of the location of the crossing, and the large number of people crossing it, or where the mode of crossing adopted by the company is exceptionally dangerous.” 2 Woods Railway Laws, 1313.

And in Pennsylvania R. R. Co. v. Matthews, 36 N. J. L. 531, the chief justice, in delivering the opinion of the court, said: “ Under usual circumstances, in the open country, they (railway companies) can run as many trains, and at as groat a rate of speed as are consistent with the safety of their passengers. They are not called on to keep flagmen, under ordinary circumstances, at cross-roads, nor to give any other notice of the approach of their trains than those signals that are prescribed by statute. If greater safe-guards .are requisite for the safety of the community, and those public agents are to be put under greater restrictions in the exercise of their franchises, such contrivances must proceed from the legislative, and not from the judicial power. But while I thus say that these additional burthens cannot be imposed by the courts upon these companies, I also say, at the same time, and with quite as much emphasis, that the companies may, by their own conduct, impose such burthens on themselves. If one of them chooses to build its track in such a mode as to unnecessarily make the use of a public road which it crosses, greatly dangerous, I think such company, by its own action, must be held to have assumed the obligation of compensating the public for the increased danger, by the use of additional safeguards. The reasonable and indispensable implication is that the railway is to be constructed so as not unnecessarily to interfere with the safe use of the public roads; and if a railroad for its own convenience curves its track, as it leaves a deep cut within a few feet of a highway, and also sees fit to put up buildings close along such track, and by these means, or either of them, heightening the danger in the use of such highway, it seems to me very clear, that such company must be held to have taken upon itself the duty of averting such danger, by the employment of every reasonable precaution within its power. On such occasions as this, or whenever the situation is embraced within the principle stated, the presence of a flagman, or some equivalent safeguard can be demanded of the company.”

The crossing in question has been recognized by the railroad companies using it, as of that exceptionally dangerous character, made so for their convenience in using the tracks as a place for switching cars and locomotives, which ' created the duty to place gates and gatemen there as a necessary precaution on their part, and we think very properly so; for when a railroad company for its own convenience, lays its tracks across a generally travelled public street in a populous town or city, over which people with their teams and vehicles are accustomed to pass almost continuously, and then uses the tracks as a place for the convenient switching of trains and engines, thus making a.yard of a portion of the public street, it is bound to exercise care proportioned to the increased danger arising from such use of its tracks, to avoid injury to persons using the crossing; and common prudence requires that it should, as a reasonable precaution for their safety, and means of preserving the legitimate uses of the street, maintain flagmen or gates and gatemen at such crossing, or adopt other adequate measures for that purpose; otherwise, the street may be permanently obstructed and its uses destroyed.

So long as the defendant used the railroad tracks at this crossing and operated the road, it was incumbent on it to use like care. It should anticipate the reasonable effect of the gates, and the gatemen’s conduct in their managment, on persons approaching the crossing, or about to cross, and operate the road at that place, having due regard to such probable effect, and exercise care proportioned to the probable danger to persons using such crossing under those circumstances; and if while so using the tracks of the road, it accepts the services of the gatemen employed by the company owning the road, instead of employing gatemen of its own, they become, for the time being, its servants, for whose negligence it is responsible; and if it does not accept their services, its duty is to place competent gatemen there, and is responsible for its omission to do so. It might by proper stipulation in the agreement of the railroad company with which it contracted*, require it to furnish competent servants for the transaction of its business, and hold it responsible for any breach of the agreement; but it cannot by such contract, or by its failure to so contract, shift either the duty it owes to those using the street, or its responsibility to them.

3. The refusal of the court to give the third instruction requested by the defendant is also one of the errors assigned. That instruction is that :

If the jury find from the evidence, that at a point on Freeman street, twenty-five feet from the track upon which the locomotive that caused the injury was coming, the decedent seated in his wagon could, by looking in the direction of the approaching locomotive have seen it at a distance of one hundred and fifty feet, or more, from the crossing, and in time to avoid the collision, his failure to discover its approach was negligence on his part, and the plaintiff cannot recover.”

It is said in the argument that this instruction is adopted from Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 678.

The instructions requested and refused in that case were, that if the plaintiff’s daughter, who was killed, and her sister who was accompanying her, could, by looking, have seen the train and avoided the injury, their attemptto cross without looking was negligence; or, if they were standing on the track without looking to see if a train were approaching, if they could have seen the danger and avoided the injury by looking, that was negligence. This court in declining to reverse the judgment because of the refusal to give the instructions requested said : “ While we think the court erred in refusing a new trial on the ground that the verdict is against the weight of the evidence, we see no error in its refusal to give the instructions asked. To give the instructions asked would have been to a great extent, taking the case from the jury by assuming the existence of material facts in the case. The court could not say to the jury that the failure of the girls to look in the direction of the gravel train when approaching or standing upon the track was carelessness such as should prevent a recovery without assuming the existence of material facts in the case which it was for the jury to find. The instructions asked assume the agency of the elder sister, and assume the non-existence of any facts or cirsumstances rendering it prudent or proper for her to omit looking out. These were matters for the jury, and could not be found or assumed by the court, no matter how plainly they might be proven.”

These observations apply aptly to the instruction now under discussion. It assumes that there were no other facts or circumstances in the case which might properly enter into the question of contributory negligence, and in effect excluded from the jury in its consideration of the question, the fact that gates were maintained at the crossing, and stood open in the presence of the gateman having control, thus signifying a clear track and amounting to an invitation to those about to cross over to do so. Then there was evidence tending to prove that there were at least four tracks crossing Freeman street at the point in question, used by both railroad companies for switching and shifting locomotives and cars. These tracks intersected at different places, so that the passing of engines along them in the direction of the crossing, and one hundred and fifty' feet away, was not always an indication that they would pass the crossing; and the fact that the gates remained open might easily create the belief by persons ordinarily prudent, that they would not be run to the crossing. At least this was a proper circumstance for the jury in determining whether the deceased exercised proper care, and the instruction requested virtually excluded it from their consideration; and, we think there was no error in refusing it.

4. The only other instruction requested by the defendant, which was refused, is the following :

“ If there were obstructions to the decedent’s line of vision in the direction from which the locomotive was coming, that fact made it the more necessary that he should use other means to discover danger, and if he could not avoid danger otherwise than by stopping and listening, then it was his duty before going upon the track to stop and listen, and if his failure to do so contributed to the injury, plaintiff can not recover.”

Much of what has already been said is also applicable to the question raised by this request. As before remarked, persons approaching railroad crossings are bound to the reasonable use of their faculties in discovering and avoiding danger from passing trains, and to that end, it is ordinarily their duty to listen, and if necessary, stop before attempting to cross; but at crossings where gates are maintained, this may cease to be a duty, or be so only under peculiar circumstances, though the view of the track is obstructed. The placing of gates and gatemen at the crossing may have become but a prudent and proper precaution on the part of the railroad companies because of the obstructed view of the tracks, and the difficulty on the part of persons approaching in discovering danger from observation merely. At such crossings, it is the duty of the gatemen to observe the tracks, and to know when, on account of approaching trains and engines, it becomes dangerous to cross, and whenever it docs, to close the gatos and prevent persons from attempting it; and it is as much their duty to observe and know when the tracks are clear, and persons may cross over in safety, and when it is, to open the gates and keep them open for that purpose so long as it continues to be safe to cross, and no longer. Persons approaching such crossings have the right to presume, in the absence of knowledge to the contrary, that the gatemen are properly discharging their duty, and govern themselves accordingly, and it is not negligence on their part to act on the presumption that they are not exposed to dangers which can arise only from a disregard by the gatemen of their duties; and hence, when the gates are open and the gatemen present they are entitled to assume that the tracks are clear and it is safe to cross, and their failure to stop and listen before passing onto the tracks through the open gate, is not, in the absence of other circumstances, negligence which will, in case of injury to them, caused by a passing locomotive while so attempting to cross, defeat a recovery therefor. This conclusion is sustained by the case of Baker v. Pendergast, 32 Ohio St. 494, where it is held, that a person about to cross a street of a city in which there is an ordinance against fast driving has a right to presume, in the absence of knowledge to the contrary, that others will respect and conform to such ordinance; and it is not negligence on his part to act on the presumption that he is not exposed to a danger which can only arise through a disregard of the ordinance by other persons.”

It is true that it is further held in that case that, if the person crossing the street knew that persons were driving along the street at a forbidden speed, and had full means of seeing the rate at which they were going, the existence of the ordinance would not authorize a presumption which was negatived by the evidence of his senses.”

The instruction requested by the defendant now under consideration assumes that the deceased (Schneider) did not see the approaching engine, and could not on account of obstructions to his “ line of vision in the direction from which the locomotive was coming,”, and therefore, that it was his duty to use other means to discover the danger, and, if necessary, to stop and listen. In the case assumed by the instruction the presumption upon which he had a right to rely, viz.: that the gatemen were properly performing their duty, and the track was clear, was not negatived by the evidence of his senses or in any other way.

5. The last assignment of error we notice is that based upon the alleged misconduct of the plaintiff. It appears from the bill of exceptions that a drawing prepared by one of the witnesses, of an engine and the crossing, was admitted in evidence on the trial, and was taken with the papers by the jury on the submission of the case. The misconduct consisted in writing on the back of this paper by one of the plaintiff’s counsel what is characterized by defendant’s counsel as “points and suggestions.” If not entirely unintelligible, they are so meagre and obscure as to render it doubtful whether any person except the one who wrote them could make any intelligent interpretation of them, or derive any significance from them. It appears that they were memoranda written while the counsel for the defendant were making their arguments to the jury, by one of the plaintiffs’ counsel as points to be answered by him in the closing argument. He did not at the time know that they were being made on a paper in the ease, and it appears that they were not made with any intention to have them go to the jury, and neither the plaintiff nor her counsel knew the jury had them. The delivery of the paper to the jury was attended by no wrongful conduct on the part of the plaintiff or of her attorneys, and the trial court, familiar with the progress of the trial and the conduct of the jury was better able than wc, to judge whether the defendant could have been prejudiced thereby. At all events we do not regard it a matter of such consequence as to require the reversal of the judgment.

Some other errors are assigned, but they are substantially disposed of by what has already been said and they need not be more particularly noticed.

Judgment affirmed.


author: By the Court :

text:
    Kaufmann v. Village of Hillsboro.

      Intoxicating liquors — Dow liquor law — Section 11 construed— What is sale at retail.
    (Decided May 22, 1888).
    Motion for leave to file petition in error to the Circuit Court of Highland County.
    The plaintiff in error was convicted before the mayor of Hillsboro on a complaint under oath charging him with keeping a place in said village where intoxicating liquors, to-wit, beer, are sold, contrary to the ordinance of said village. The ordinance was adopted under the provisions of the act known as the Dow law, authorizing town councils to prohibit the keeping of places within their limits where intoxicating liquors are sold in any quantities at retail, other than as permitted by said law. The proof was that K. sold twenty-five quarts of beer at one time to one Rhoades, put up in quart bottles; that he was not a manufacturer of'it, and that it was sold to Rhoades not for any mechanical, pharmaceutical or sacramental purpose, nor upon the prescription of any physician, but was sold to him to be drank as a beverage. There was also proof that K. kept a place where he was in the habit of selling beer in such quantities ; and the claim is made that such sales do not constitute a selling at retail -within the meaning of the ordinance, or of the statute conferring the power to adopt it.

      Sloane, Gardner & Hire, for the motion.

      D. Q. Morrow, contra.

   By the Court :

A sale, by one who is not a manufacturer, of twenty-five quarts of beer, put up in bottles of one quart each, not upon the prescription of a physician, nor for any known mechanical, pharmaceutical or sacramental purpose, but to be drank by the person to whom sold, is a sale at retail within the meaning of the eleventh section of the act known as the Dow law; and the keeping of such place where such sales are made is a violation o£ the ordinance of a village prohibiting ale, beer and porter houses and other places where intoxicating liquors are sold at retail for any pupose or in any quantity, other than as permitted by the eighth section of said act. (83 Ohio L. 157).

Motion overruled.


text:
    Hiett v. Nebergall.

      Practice — Appeals.
    (Decided June 19, 1888).
    Error to the Circuit Court of Auglaize County.

      Ferrall & Ollier, for plaintiff in error.

      Brotherton & Davis, and Layton & Stueve, for defendant in error.
   By the Court :

An appeal will lie from an order of a probate court overruling a motion of an imbecile ward to terminate the guardianship upon 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 1 etters were issued he has since been fully restored to reason.

Judgment affirmed.