author: Burket, J.

text:
    The Cincinnati Street Railway Co. v. Murray, Adm’rx; and The Baltimore and Ohio Southwestern Railroad Company.

      Street railway crossing railroad track — Provisions for safety of . street car passengers — Act of May 4, 1891 (88 Ohio Laws, 582) —Duty of street car employe — Negligence—Action for damages — Questions for court and jury — Evidence.
    1. The act of May 4, 1891, 88 O. L., 582, provides, in substance, that before a street car shall cross over a railroad track at grade, that the street ear shall stop not less than ten, nor more than fifty feet from, the' railroad track, and some employe of the street railway company shall go ahead of the car, and ascertain if the way is clear and free from danger for the passage of such car, and said car shall not proceed to cross until signaled so to do by such employe, or said way is clear for the passage over said track.
    In the absence of extraordinary circumstances, it is negligence to cause such street car to cross such railroad track, without stopping the car and going ahead as required by this statute.
    2. Whether or not such violation of said statute could be justified or excused by any circumstances whatever — quaere.

      3. In an action for damages, to make such negligence actionable, it must appear that injury was directly caused thereby.
    4. In a trial of an action for damages in such case it is proper for the court to instruct the jury that such failure to stop the car and go ahead, as required by said statute, constitutes negligence, and if the evidence tends to prove that such negligence was the direct cause of the injury, the case should be submitted to the jury. Whether the evidence does or does not so tend, is a question of law for the court.
    5. If there is only one employe operating such street car, it is his duty to stop the car and go ahead, and ascertain if the way is clear and free from danger, and if ho finds the way clear for the passage over the track, he may cross over with his car without signaling to anyone; but if there are two or more employes operating such car, such signaling is required before crossing.

      6. Such stopping, going ahead and signaling, are required at crossing's having gates and a watchman, the same as at other crossings.'
    (Decided December 17, 1895.)
    Error to the Circuit Court of Hamilton county.
    This action was brought in the superior court of Cincinnati, by Alta G. Murray, administratrix, on the estate of John L. Murray, deceased, against the Cincinnati Street Railway Company, and the Baltimore and Ohio Southwestern Railroad Company, under sections 6134 and 6135, Revised Statutes, seeking’ to recover the pecuniary injury resulting from his death by the alleged negligence of said two companies.
    The injury occurred on October 4, 1892, at a point where Harrison avenue, in the city of Cincinnati, crosses the double tracks of the railroad. The avenue is traveled and thronged with persons, vehicles and street cars, and crosses the railroad at grade. The railroad has a double track, and operates sidings and yard tracks in the immediate vicinity of the crossing, and seventy-five regular ■trains pass over this crossing every day, besides many switch trains, so that the crossing is regarded as dangerous.
    The railroad company had gates at the crossing and a watchman to lower and raise the same, so as to prevent accidents at the crossing. The street ear upon which Mr. Murray, who had paid his fare, was a passenger, approached the crossing from the east after dark in the evening. A train of ears was standing on the east side track of the railroad, near the north line of the avenue, and extending some distance north so as to obstruct the view of the main track from persons on the avenue east of the railroad. As the car approached the railroad crossing, the driver of the car checked his horses and brought his car nearly to a stop-something’ less than fifty feet from the railroad, and the conductor of the street car was about to step from the car and go forward to see whether it was safe for the street car to cross when the watchman in charge of the gates called to the employes in charge of the street ear to “comeahead” or ‘1 come on. ’ ’ The gates at this time were in an upright position, indicating’ that it was safe to cross the railroad tracks. And the watchman who-gave the sig’nal to “come ahead ” was at the same time sounding' the gong signal which was attached to the gates, and was so sounding for the purpose either of indicating to persons about to cross that they should cross promptly and that it was safe to do so, or to warn them that a train was coming’ and not to attempt to cross, the evidence on this point being conflicting. The driver and conductor of the street cal' listened and heard no sound of a. locomotive bell or whistle or other sounds of an approaching train, and their view from the main track was obstructed by the cars upon the side track. Thereupon the conductor resumed his place on the rear platform of his car, and the driver, in pursuance of the invitation and signal from the watchman to “come ahead,” started the street car and attempted to cross the railroad tracks. When the street car was partly across the railroad tracks, and it was too late to avoid a collision by stopping the street car, a “cut of cattle cars,” composed of two or three box cars, loaded with live stock, and being pushed by an engine from behind, came down the west track of the railroad, running at the rate of twenty or twenty-five miles an hour, and blowing no whistle, ringing no bell, and displa3dng no signal light, approached the crossing. The driver of the street car then made every effort to get his car across the tracks and avoid a collision, but the railway train struck the rear platform of the street car, after the whole of said car, except the rear platform, had passed over the crossing, and thereby Mr. Murray received injuries from which he shortly thereafter died.
    The case was tried to a jury,- and a verdict rendered against both defendants. A motion was made for a new ■ trial, which was overruled, and judgment entered on the verdict. On petition in error to the circuit court, which then had jurisdiction, the judgment was affirmed. Thereupon the case was brought here by petition in error on part of the street railway company, and by cross petition on part of the railroad company.

      J. IF. Wa/rnngton and E. TF Kittreclge, for plaintiff in error.
    There are two questions which arise upon the charges given and refused.
    The first is: Whether, the statute which provides especially for gates and watchman at dangerous crossings, Revised Statutes, sections 247a and 2476, and the provisions of section 2 of the act of May 4, 1891, 88 O. L., 582, which relates generally to crossing of a steam railroad by a street railroad, being in pari materia,, should be construed together. ■ If so, are not the provisions of the former, being special, relating to a class of crossings where gates and watchman are requisite, exclusive of the provisions of the latter? Do not the provisions of the act referred to, of 1891, refer only to crossings where no gates or watchman are required or maintained?

      The second question is: Whether, if the act of 1891 applies to a crossing where gates and a watchman are maintained, is the failure to comply with the requirement to stop and send forward the conductor of a street car, under all circumstances per se, negligence, or is the violation of the law under the circumstances a fact competent to be considered by the jury with all the other evidence in the case, in determining whether the defendant was guilty of negligence?
    The legislation, both of the state and the city, provided the special means of preventing collisions at this particular crossing by requiring the establishment of the gates and the constant presence of the watchman whose duty it was to control and regulate the sáfe transit of the traveling public across the steam railroad tracks.
    It is well settled that several acts in pari materia, and relating to the same subject, are to be taken and comprised together in construing them; because they are considered as having one object in view, and as acting- upon one system. It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious. 1 Ohio St., 20.
    There is also another familiar principle in the construction of statutes, expressed by this court in the case of Crawford v. McGregor, 44 Ohio St., 631.
    It should be observed that the plaintiff’s cause of action against the street railway company, as alleged in the petition, was not all for the violation of this statutory duty.
    In this respect the case was like that of the B. & O. R. R. Co. v. Whitacre, 35 Ohio St., 629.

      But what we contend, and all that we contend for, is that, under the issues as they were made in this ease, the failure of the street railway company to stop its car, and send an employe forward, and to do the other things required by the statute, was a fact which, in connection with all the other facts in the case, and disclosed by the evidence, should have been submitted to the jury for their determination of the question whether the street railway company exercised the degree of care which the law required' of it, or whether it was guilty of negligence which was proximate cause the of the injury. Blamares v. Railroad Co., L. R., 8 Exch., 283; Wakefield v. Railroad Co., 37 Vt., 330; Meek v. Pennsylvania Co., 38 Ohio St., 632; Kempfle v. K. Ice Co., 84 N. Y., 488; Horn v. Railroad Co., 54 Fed. Rep., 301; Railway Co. v. Elliott, 28 Ohio St., 340; Railroad Co. v. Whiteacre, 35 Ohio St., 627.
    Whether a failure to stop the street car is always and absolutely a wrongful act amounting to negligence depends upon the question whether any circumstances will excuse the failure to observe the requirements of the statute.
    In our judgment, there is no solid distinction between one’s obligation to perform a duty imposed upon him by statute and a duty imposed upon him by common law. Bower v. Peete, L. R. 1, Q. B. Div., 321.

      Bateman <& Harper and Ilcmnon, Colston, Goldsmith c& Iloadley, for defendant in error.
    The street railway act was passed subsequently to the act regulating the duty of the steam railway company, at crossing, and must be presumed to have had in view the provisions of that act. And inasmuch as it does not limit its operation, as to cases provided for by the steam railway act, the intent of the legislature must be assumed to be as expressed.- The steam railway act was passed April 15, 1889, 86 O. L., 367. The street railway act was passed March 4, 1891, 88 O. L., 581. If either may be said to operate to modify the provisions of the other, in the nature of amendment or repeal, such necessarily would be the case as to the street railway act, having- been passed subsequently to the steam railway act. If either was repealed or-amended by the operation of the other it must be the first act,-and that only to the extent to which it is inconsistent with the later. There is no inconsistency in the two acts. In the matter of the probate of Iiathawajr’s will, 4 Ohio St., 383; Woodbury v. Berry, 18 Ohio St., 456.
    The street and steam- railway- companies have their several and appropriate duties; the statute regulates both. As a common carrier the street car company has no right to rely upon the faithfulness or care of another company and its servants, over which it has no control and for which it can provide no regulation. It is sufficient that each should take the hazard of its own servants, and it would be unjust to subject one to the neglect or misconduct of the servants of the other, and the statutes were intended to hold each to its duty and responsibilities. Railway Company v. Schneider, 45 Ohio St., 678; Eaton v. Railroid Co., 129 Mass., 364; Hayes v. Railroad Co., 111 U. S., 235; Pepper v. Sidwell, Admr., 36 Ohio St., 454; Hammerly v. Kramer, 12 Ohio St., 252; Youngstown v. Moore, 30 Ohio St., 133; Fox v. Spring Lake Iron Co., 89 Mich., 387; Railway Co. v. Taylor, (Ky.) 17 S. W. Rep., 198; Paulson v. Ward, (N. Dar.) 58 N. W. Rep., 792; Bicknell v. Spier, 27 N. Y., 386; Ladoga
      v. Linn, (Ind. App.,) 36 N. E. Rep., 159; Spengler v. Kaufman, 43 Mo. App., 5; Horn v. Railroad Co., 54 F. R., 301; Pennsylvania Co. v. Rethged, 32 Ohio St., 66; Salisbury v. Herschenroder, 106 Mass., 158; Billings v. Breinig, 45 Mich., 65; Correll. v. Co., 38 Iowa, 120; Lloyd v. Perry, 32 Iowa, 146; Dodge v. Railroad Co., 34 Iowa, 276; Railroad Co., v. Stebbing, 62 Md., 504; Keim v. Union Railway & Transit Company, 90 Mo., 314; Faith v. Railway Co., 105 Mo., 437; Weber v. Railway Co., 100 Mo., 194; Seimers v. Ison, 54 Cal., 418; Shearman. & Redfield on Negligence, section 13^/ Central Railroad and Banking Company v. Smith, 78 Ga., 694; Railroad Co. v. Boggs, 101 Ind., 522; Hazard Powder Company v. Volger, 58 Fed. Rep., 152; Railroad Co. v. Voelker, 129 Ill., 540; Piper v. Railroad Co., 77 Wis., 247; Bott v. Pratt, 33 Minn., 323; Kelly v. Railroad Co., 75 Mo., 138.
    We insist, therefore, that both upon reason and •authority, when the law commands acts to be done or omitted by a railway company, by way of conserving the public safety, a duty is thereby imposed upon it in behalf of each individual composing the public, and a breach of that duty constitutes negligence in law, and, if injury shall have resulted therefrom, gives to the person injured the right of action for the amount of such injury against the delinquent company; and that the company has no dispensing power by which it can substitute other precautions in place of those prescribed by law.
   Burket, J.

The errors assigned and relied upon, arise upon the charge of the court to the jury as given, and refusal to charge as requested. The general charge as to the liability of the street railway company in so far as the points made in argument are concerned, is embraced in the following :

“The Cincinnati Street Railway Company at the time and place mentioned, through its agents or servants, was bound to exercise the highest degree of care which prudent men are accustomed to employ under similar circumstances, and to the end that the passenger might be safely carried to the end of his journey, however, without being an insurer of the safety of the passenger, for that the company did not undertake to do. Nor does it under the law stand as an insurer of the safety of the passenger.

“If the jury find from the evidence that the defendant, The Street Railway Company, is a common carrier of passengers, and that on the fourth day of October, 1892, the plaintiff’s intestate was a passenger on the car of the defendant, and having paid his fare, it was the duty of the said defendant to carry him safely to the point of his destination without injury, and when it is shown that the defendant failed to carry the plaintiff’s intestate safely to the place of his destination, the failure puts the defendant prima facie or affirmatively in the wrong’, and the burden of proof devolves upon the defendant to show that the injury was the result of another independent and intervening cause, and that the injury might not have been prevented by the exercise of that high degree of care to which we have alluded, and which prudent men are accustomed to employ under similar circumstances.

£ £ The laws of Ohio make it the duty of a street railway company to cause their cars to come to a full stop, not nearer than ten nor further than fifty feet from the tracks of a steam railway at a ■ crossing, before proceeding to cross ; to cause some person in its employ to go ahead of the car and ascertain if the way-is clear and free from danger for the passage of such street car, and not to proceed to cross until such action has been taken by such persons so employed and the way is clear for their passage over the said tracks. If you find that the death of the plaintiff’s intestate resulted from the omission of such duty, or could have been avoided by the observation of said duty, you may consider it as the act of negligence on the part of the railway company, because of the invitation of the steam railway to come across, they should look and see that the way was clear, that does not relieve the street railway company from its duty to its passengers as I have described.”

The plaintiff in error excepted to the last of the above propositions of the general charge.

The court also charged the jury that both railroad and street railway might be found guilty of the wrongful act causing the injury, if both were concurrent in point of time and fact, and the wrongful act of each was the direct and proximate cause of the injury.

At request of plaintiff below, the court gave the following special charges, to which plaintiff in error excepted:

“1. The statute of Ohio made it the duty of The Cincinnati Street Railway Company to cause its car to come to a full stop not nearer than ten feet nor further than fifty feet from the crossing, and before proceeding to cross said steam railway tracks to cause some person in its employ to go ahead of said car and ascertain if the way was clear and free from danger for the passage of said street car, and not to proceed to cross until signaled so to do, by such person so employed, as aforesaid, or said way was clear for their passage over said tracks ; and I charge you that the omission of such duty is negligence on the part of said defendant, which will render it liable in damages, if you find that the death of the decedent resulted from such omission, or could have been avoided by the observan.ee of this duty.

“2. So far as the street railway company is concerned, the fact, if you shall find it so to be, that the gateman neglected to let down the gates, or invited the street car driver to come ahead, does not excuse the company from its failure to send a person in its employ forward to examine the track, and to stop until such person shall have notified them to proceed.”

The street railway company then requested. the following five special charges, which the court refused to give, and exceptions were duly taken.

“1. If you find that the defendant steam railway company, in obedience to an ordinance of Cincinnati, had been, and at the time of the accident was maintaining gates with a watchman at the crossing-in question, then I charge you that employes of the defendant street railway company were not required at the same time and crossing first to stop the street car and then go forward to look for the approach of steam trains, but that such employes had the right to rely on the watchman with the gates of the steam railway company.

“2. If you find that as the car of the street railway company approached the steam tracks in question, the gateman of the defendant steam railway' company kept his gates open and by the use of his gong and oral invitation indicated to the driver of the street ear that it was safe to, and he should drive across the tracks, and that the street railway employes while in the exercise of their senses of sight and hearing did not know of such an approach of a train as to make it unsafe to cross the tracks, then I charge you that the street railway employes were excused from stopping their car or going forward in advance of the car to examine for approaching trains, and that they were justified in accepting such invitation of the gateman and attempting to cross the tracks.

“3. If the jury find from the evidence that the gates established at the steam railroad crossing were open at the time the street car approached the crossing; the open gates were an affirmative and explicit declaration 'that it was safe to cross,- and that no train or locomotive was. approaching’ the crossing near enough to make it unsafe for the employes of the street railway company to act upon the invitation to cross; and if you find that the employes of the street railway company in the' use of their senses of sight and hearing did not know of the approach of a train and were not otherwise warned or advised of its near approach so as to make it unsafe to cross, they were not guilty of negligence in acting upon the invitation extended to them by the open gates..

“4. If you find that Harrison avenue and the steam railroad track at the point where this collision occurred was a crossing much used both by the steam railroad and the street railroad and the traveling public generally, and the number of trains using the steam road and others using public conveyances and traveling along the street, made it necessary and highly important for safety in crossing, that persons driving wagons and public conveyances should cross over promptly and quickly, so that the passage of steam railroad trains and of persons desiring to use the street crossing should not be unduly delayed and hindered, and in order to avoid this you should find that it was necessary for the defendant’s street car to cross over promptly and speedily, then I charge you that unless the employes of the defendant street railway company were made aware or by the exercise of their senses of sight and hearing could have ascertained that a train was approaching before they went upon the crossing, so near as to make it unsafe to cross, you may find that they were not negligent in acting upon the invitation presented by the open gates, or such other inivtation, if you find any was given, by the employe of the steam railroad in charge of the gate.

“5. If the jury find that the defendant street railway company’s car was slowed up as it approached the tracks of the defendant B. & O. S. W. Railway Co., on Harrison avenue, and that thereupon and before the street ear reached the side track of the steam railroad, the gateman of the ‘steam railroad company personally called to the employes in charge of the street ear to 4 4come ahead,” or called to them in any other words to that effect, and in response to which the street car went ahead, then I charge you that there can be no recovery against the street railway company.”

Section two of the act of May 4, 1891, 88 O. L., provides as follows:

“Whenever the tracks of any street railroads in this state cross the tracks of any steam railway at grade, the street railway company operating said line of cars shall cause their street cars to come to .a full stop not nearer than ten feet nor further than fifty feet from the crossing, and before proceeding to cross said steam railway tracks, shall cause some person in their employ to go ahead of said car or cars, and ascertain if the way is clear and free from danger for the passage of said street cars, and said street railroad cars shall not proceed to cross until signaled so to do by such person so employed as aforesaid, or said way is clear for their passage over said tracks. ’ ’

The penalty for a violation of this section is one hundred dollars, together with liability in damages to the party injured, on part of both the street railway company and its employe.

On part of the street railway, it is contended that the above statute should be read in pari mcvteria with that section of the railroad statute requiring gates and a watchman to be maintained at dangerous crossings, and that when the gates are open and such watchman is at his post and signals the street car to come on and cross, that the employes of the street railway are thereby relieved and excused from stopping the car and g'oing forward to ascertain whether the crossing* is clear and free from danger.

We do not agree with this view. The watchman is placed at his post to prevent accidents and injuries at the crossing*, and he and the railroad company are chargeable only with ordinary care, while the street railway company is a carrier of passengers, and as such is chargeable with a much higher degree of care.

The street railway statute is for the protection of the lives of its passengers, and in addition is highly penal in its provisions, and by its terms makes no exception of crossings where there are gates and a watchman.

It is therefore clear that the car must stop and the employe go forward, whether there are gates and a watchman or not.

It is also contended on part of the street railway company, that the court erred in its general charge, and in the special charge, in which the court called the attention of the jury to the above statute and the duty thereby imposed of stopping, the car and going forward to see that the crossing-is clear, and then added: “If you find that the death of the plaintiff’s intestate resulted from the omission of such duty, or could have been avoided by the observation of said duty, you may consider it as the act of neg-ligenee on the part of the railway company, because of the invitation of the steam railway to come across they should look and see that the way was clear, and does not relieve the street railway company from its duty to its passeng-ers as I have described. ’ ’

The case was argued, both on brief and orally, as if the court had charged that the mere failure to stop the car. and failure to go forward to see-that the crossing- ^ was clear, constituted, per se, such actionable neglig-enee as to warrant a recovery; and it is strongly urged that the question, as to whether such failure to stop the car and go forward, was or was not negligence on part of the street railway company, should have been submitted to the jury. Four of the five requests to charge are also in line with this theory. But an examination of the above part of the general charge shows, that the court only decided that. in this case it was negligence to fail to stop the car and go forward, and then as to whether or not the injury was caused by such negligence was submitted to the jury. The language of the court is, “If you find that death resulted from the omission of such duty or could have been avoided by the observation of such duty.”

This clearly leaves to the jury the question as to whether or not the injury was caused by the negligence of not stopping the car, and not going forward as required by statute.

True, the effect of the charge was that the failure to stop the car and go forward was negligence. The charge in that regard was strictly correct. The statute requires that the car stop and that an employe go forward and ascertain if the way is clear, and a failure to obey the statute in this regard is negligence, but in an action for damages, and not for penalty, it is not actionable negligence, because to make such negligence actionable, some injury must have been directly caused thereby. In such case if there is nothing which in law tends to justify or excuse such negligence, it is not only the right, but the duty of the trial judge, to say to the jury that such omission is negligence, and then, if the evidence tends to prove that such genligeh.ce was the direct or proximate cause of the injury, to submit that question to the jury; if the evidence does not so tend, a verdict should be directed for the defendant. Whether or not the evidence so tend s, is a question of law for the court, and not of fact for the jury.

It may well be doubted, whether under any circumstances, the street railway company would be justified or excused for violating the statute, but that question is not necessarily involved in this case, as the facts shown at the trial did not even tend toward an excuse or justification.

The trial court in this case said to the jury, that if they found that death resulted from the omission of such duty, or could have been avoided by the observation of such duty, that the street railway company would be liable. The true test in such case is, that the injury resulted directly from the negligence complained of, or was directly or proximately caused thereby; but in the absence of a request to make the charg-e more specific in that regard, we cannot say that the street railway company was prejudiced by the charge as given.

It is urged that this failure of duty on part of the street railway company, was not averred in the petition, and that therefore it cannot be relied upon as a ground of recovery. Railroad Company v. Whitacre, 35 Ohio St., 629. The statute prescribes the care to be taken by the street railway company at a crossing-, and the terms of the statute need not be pleaded, but in this ease they were pleaded, and were on motion vepy properly stricken out. The petition avers that: ‘ ‘ The said street railway company without exercising any care on its part, negligently and carelessly caused said car, on which said decedent was riding, to be drawn across said steam railroad tracks.” If it drove on without exercising any care, it certainly did not stop its car nor go forward, because that would have been exercising some care, in fact such care as the statute requires. The averment of no care is broad and sweeping, and perhaps indefinite and uncertain, but all this might have been cured by motion.

It is also urged that it is not always necessary to stop the street ear and go forward when a railroad crossing- is reached, and that the last sentence of the section shows that if the track is clear, the car may proceed without stopping and without any one going- forward. The section of the statute in question, after providing for the stopping of the street car and an employe going forward to ascertain that the way is clear and free from danger, provides as follows: “And said street railroad cars shall not proceed to cross until signaled so to do by such person so employed .as aforesaid, or said way is clear for their passage over said tracks.”

In many cities there is but one employe on a street car, and while he is bound to stop his car and go forward and ascertain if the way is clear and free from danger, he cannot well signal to himself to proceed, and in such case he shall not proceed to cross with his car, “until said way is clear for their passage over said tracks.” This last sentence is clearly applicable only to eases where, after one goes forward, there is no one left in charge of the car to whom a signal can be given. But this does not excuse the employe from stopping his car, and going forward and ascertaining whether the way is clear and free from danger.

The railroad company in its brief, asks a reversal of the judgment against it only in case the judgment against the street railway company should be reversed, but in oral argument it is urged that the judgment against the railroad company should be reversed, and that against the street railway company affirmed. We find no error in the record prejudicial to either company, and therefore the judgment against both companies is affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    Glidden v. The Mechanics’ National Bank.

      Collateral security — Pledge of property — Pledgee cannot become purchaser, when — Express agreement as to sale — Respective rights of pledgor and pledgee — What a conversion of property by pledgee.

    1. In the absence of express agreement authorizing it, a pledgee cannot become the purchaser of the pledged property at his own sale; and if the property be bid off by him the contract of pledge is not hereby terminated’, nor the relations of the parties changed, unless the pledgor elects to treat the transaction as a valid sale, in which event the pledgee will be accountable for the net proceeds of the sale.
    • 2. If the pledgor do not so elect, the pledgee, while he retains the possession and control of the property with the ability . to perform his part of the contract by restoring the property to the pledgor, cannot be held for its conversion, without demand for its return accompanied with an offer by the pledgor to perform his part of the agreement.
    3. When, however, the pledgee puts it out of his power to perform his part of the agreement, by an unauthorized disposition of the property, he will be liable for its conversion without demand and offer of performance by the pledgor; and when he has so disposed of a part of the property, he may be held for the conversion of all of it, as of the time of such disposition.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Cuyahoga county.
    The original action was brought by the Mechanics’ National Bank, against John N. Glidden, in the court of common pleas of Cuyahoga county, on the following written oblig’ation: •
    “$14,524.00.
    “Pittsbdrg, Pa., August SO, 1883.

    “On October 10th after date, I promise to pay to the order of the Mechanics’ National bank, fourteen thousand five hundred and twenty-four dollars, without defalcation, for value received, having pledged to the said bank as collateral security, in lieu of an endorser, nine warrants of the Union Storage company numbers as follows; 655,656,657, 658, 659, 660, 661, 662, 663, for 108 (2268) tons each, 972 tons in all, with authority to sell the same on the non-performance of this promise, in such manner as they in their discretion may think proper, without notice, either at public or private sale, and to apply the proceeds hereon holding1 me responsible for the deficency if any should occur.
    (Signed) “John N. Glidden.”
    The petition alleges that the iron referred to in the above obligation, “remained in storage at the price agreed upon by said Glidden, with the Union Storage company under the said warrants described in said instrument until February 7, 1887, when the said plaintiff sold fifteen tons of said iron at $20 a ton, $300; and on August 20, 1888, it sold 524 tons at $16 per ton, on paper runing four months, without interest, $8,398.97; and on September 11, 1888, it sold 108 tons at $16 per ton on time, at four months without interest, $1,728; and on September 20, 1888, it sold 324 tons at $16 per ton, on four months paper without interest, $5,184. All said iron was sold by said plaintiff in the exercise of the power given by said instrument of writing, and amouuted to the sum of $15,610.97. The plaintiff further says that to reduce said time sales to cash required the payment of $306.21, leaving the balance that it received on the sale of said iron $15,304.76, less charges, which the plaintiff alleges that it paid, as follows:
    “Storage to the Union Storage company under and by virtue of the terms of said warrants, which the defendant agreed to pay to said Storage company at the time that he placed said iron in their storage:

      From March 9, 1883, to September 20, 1888, 5 yrs., 6 mos. and 10 dys................$3,223.80
    Freight on iron from Newcastle to Pitts-burg’, where said iron was sold, at 70c. a ton............................................................................... 677.64
    Commission paid to auctioneer for selling iron at 25c. per ton.............................................. 243.00
    Total charges..........................................................$4,144.44
    Which being taken from $15,304.76, leaves $11,-160.32, which the plaintiff realized upon the sale of said iron, and no more.
    “The plaintiff further says that the freight paid by it on said iron from Newcastle to Pittsburg where the same was sold, was but the ordinary and reasonable freight over the line of railroad between said places; and the commission for selling the iron was the ordinary and customary price for the sale of the same.
    “The plaintiff says that after deducting said amounts so received by it on the sale of said iron, to wit, $11,160.32, as of the date of the last sale, to wit, September 20, 1888, from the amount due on said note, there is due the plaintiff the sum of $7,708.73 thereon, with interest from said 20th day of September, 1888, no part of which has' been paid.
    “Wherefore the plaintiff prays .judgment against the said defendant in the. said sum of $7,708.73, with interest thereon from the 20th day of September, 1888.”
    The answer, after admitting the execution of the written instrument sued ,on, and the corporate character of the plaintiff, and denying the other allegations of the petition, avers, by way of counterclaim, that “at the maturity of said note this defendant was so embarrassed that be could not and did not therefore pay the same; and that thereafter on or about the 5th day of November, 1883, the said plaintiff proceeded to advertise and sell at public auction, the said iron at Pittsburg, though the iron itself was all still at Newcastle, about fifty miles away. And at said auction sale said plaintiff bid in all the iron named in said nine receipts, and all the iron covered thereby; and proceeded from that time forward to claim it and to manage and control it as its own, and did then and there convert it to its own use; and has ever since until the time of filing said amended petition controlled and claimed as its own, said iron, by virtue of said public sale of November 5, 1883.
    “And this defendant says that at the time when said plaintiff so converted said iron to its own use, the same was of the value of $17 per ton, and of the total value of $18,360, for which sum plaintiff then and there became and was liable to account to this defendant. And that when sufficient is applied therefrom to pay the amount then due on said note, there remains the sum of $3,780.33 for which said plaintiff is indebted to this defendant, with interest from November 5,1883, for which amount this defendant asks judgment against said plaintiff.”
    The reply controverts, generally, the allegations of the counterclaim, but “admits and avers that just prior to November 5, .1883, the plaintiff advertised said iron for sale at public auction in newspapers of general circulation in the vicinity where said iron was located, that said sale would occur on the 5th day of November, 1883. The plaintiff further admits that on said day it offered for sale at public auction the iron covered by said receipts or warrants, and there being’ no one present that was willing- to give as much therefor as one. W. H. Carr, who was president of the ■ plaintiff, he, the said Carr, bid for portions of said iron about $10 per ton, and for some other portions about $11 per ton, he being the highest bidder for the same at said sale; and the said Carr purchased the same for said plaintiff, in the belief that he had the right to do so; but the plaintiff says that.the said defendant Glidden repudiated the said sale, because of the fact that said plaintiff could not be both seller and buyer, and refused to recognize the validity of the sale and has ever since, and now does repudiate said sale and refuse to recognize its validity. The plaintiff especially denies that it converted said iron to its own use, but alleges that the said iron was kept and retained in. said storage where placed by said Glidden until the time stated in said petition, when the same was sold for the price and in the manner therein stated.”
    Upon the trial of the issues to a jury, the court charged that the purchase of the iron by Carr for the bank constituted a conversion of the iron as of the date of November 5, 1883; and that the defendant could hold the “bank to an account for that iron for what it was reasonably worth on November 5, 1883, in the market where the iron was sold.”
    A verdict was returned finding the issues for the defendant, and assessing the balance due him, after deducting- the debt due the bank from the value of the iron on the 5th day of November, 1883; and, after the overruling of a motion for a new trial filed by the plaintiff, judgment was rendered on the verdict. A bill of exceptions, containing all the evidence, was duly allowed and filed, and on error prosecuted to the circuit court, the judgment was reversed, upon the ground, as stated in the journal entry, “that said court of common pleas erred in holding that the sale by the plaintiff in error of November 5, 1883, of the iron held by it as collateral security, was a conversion at that time;” and the cause was remanded for a new trial. Error is prosecuted here to obtain the reversal of the judgment of the circuit court, and the affirmance of that of the common pleas. A further statement of facts is contained in the opinion.

      Burke & Ingersolls, for plaintiff in error.
    What is a conversion? Cooley’s Torts, 448. Any distinct act of dominion wrongfully exerted by one on the property of another is a conversion.
    2. Greenl. on Evidence, par. 642; One who exercises dominion over property in defiance of the owner’s rig’ht is g'uilty of conversion.
    1 Add. Torts, 438, note 3, same doctrine; 4 American and English Encyclopedia, 108, same doctrine. Jones’Pledges, section 571. It is optional with the pledgor to treat such act as a conversion.-

      Baldwin v. Cole, 6 Mod. Rep., 212. The very assuming to oneself the right to dispose of another’s goods is conversion. Dodge v. Myer, 61 Cal., 405; 104 Mass., 173; 60 N. H., 426; 15 N. H., 494; 1 Handy, 532 ; 6 Wend., 603; 31 N. Y., 489; 45 N. Y., 718 ; 61 N. Y., 477; 68 N. Y., 522. This we say fully covers our case. McCorrick v. Railroad Co., 99 N. Y., 67; 102 N. Y., 681; 114 N. Y., 161. No demand is necessary where the party has not the means to comply with it. Story’s Bailments, par. 107; 5 Ameriean and English Encyclopedia, 528; Jones’ Pledges, par. 748; 5 Ind., 146 ; 3 Gray, 347 ; 80 Ala., 459; 1 Ala.. 423.
    Some of the cases put the doctrine on this ground, that a wrongful conversion terminates the bailment. 2 American and English Encyclopedia, 58; 5 Ind., 222; 5 Ired. NIC., 213; Story’s Bailments, par., 413. A pledger has a choice of several remedies; 4 Denio, 227 ; 45 N. Y., 718; 101 N. Y.,252. The question whether the pledgee acts in good faith or-not, .is not material.' 31 N.'Y.-, 493; 68 N. Y., 527; 61 Cal., 420.- The courts do not hesitate where an attempted sale has been at a very low price to comment on this as an act of oppression against the real owner. 16 N. Y., 401.
    The rational of the' doctrine of conversion we think may be fairly summed up about as follows :
    If you have any property for a specific purpose and exceed the authority given you for the control of that property and treat it as your own, I shall have the right to take you at your act; and hold j^ou as accountable to me for the fair value of that property. If you have a lien upon it for a certain amount when that lien is' deducted you owe me for the balance. We do not see how this is any injustice to a party intrusted with property. If he does not wish to make it his, let him keep his hands off.
    Boynton, Rale <& Rorr, for defendant in error.
    The circuit court reversed the judgment of the common pleas and remanded the cause for a new trial, placing’ its decision upon the ground that Glidden could not blow hot and blow cold; that he could not say that the sale of November 5, was valid for some purposes and void for others; that he must either stand by it or he must repudiate it, and having repudiated it, that it was to be treated to all intents and purposes as a void sale. Bryan v. Baldwin, 7 Lans., 174; Duncomb v. Railroad Co., 84 N. Y., 205; Roach v. Duckworth, 95 N. Y., 402; Insurance Co. v. Dalrymple, 25 Md., 242; Canfield v. Minneapolis A. & M. Association, 4. McCrary, 646; Field’s Lawyers’ Briefs, vol. 5, title “Pledges,” section 120; Cooley on Torts, section 453; Jones on Pledges, section 637.
    A pledgee cannot directly or indirectly purchase at a sale of the pledge under a power, unless it is specially provided by the terms of the power that he may do so. Nothing passes by the. form of a sale, and the pledgee still holds the., property under his original lien as collateral security. Middlesex Bank v. Minot, 4 Met., 326; Chicago Artesian Well Co. v. Corey, 60 Ill., 73; Killian v. Hoffman, 5 Bradw., Ill., 200; Baltimore v. Dalrymple, 25 Md., 269; Morgan v. Dodd, 3 Colo., 551; Bank v. Railway Co., 8 Iowa, 277; Railway Co. v. McKeran, 24 Ind., 62; Dana v. Coal Co., 38 Ill. App., 371; Canfield v. Minneapolis, etc., 14. Fed. Rep., 801.
    As a further answer to the position of the plaintiff in error we claim the law to be that the plaintiff could not maintain an action for conversion until the lien created by the pledge was discharged, and the lien could not be discharged until payment or tender of payment of the debt for which the pledge was made. The reason of this proposition is obvious. Until Glidden’s debt was paid by him he had no right to a return of the iron, and he could not maintain an action against the pledgee for a conversion of the iron, so long as he was in default in the payment of his debt. Whelan’s Exr. v. Kinley’s Admr., 26 Ohio St., 139;
      Lewis v. Mott, 36 N. Y., 401; Cumnock v. Newburyport Savings Inst., 142 Mass., 342; Day v. Holmes, 103 Mass., 306; Halliday v. Holgate, L. R., 3 Exch., 299; Thompson v. Toland, 48 Cal., 99; Ralty v. Bank, 93 U. S., 326; Smith v. Bunting, 86 Pa. St., 116; Bank v. Boyse, 78 Ky., 42; McCulla v. Clarke, 55 Ga., Colbrooke, on Collateral Securities, section 344.
    The judgment of the circuit reversing that of the common pleas was clearly right on another ground. We asked the court to charge the jury that if they found from the evidence that the iron was advertised for sale in the public prints of Pittsburg for a few times before it was sold on November 5, 1883, and that it was cried at public auction and sold at $10.00 and $11.00 per ton, as the highest figure to be obtained for it at the time, that that fact might be taken into consideration among others in determining its value. This instruction the court refused to give and we excepted to the refusal. Although the evidence may not be very strong it is clearly settled by the authorities that what property brings at public auction is some evidence of its market value. Hooven, Owens, Rentschler & Co. v. Scott et al., 22 W. L. B., 168; Campbell v. Woodworth, 20 N. Y., 499; People v. McCarthy, 102 N. Y., 639; Dickson v. Buck, 42 Barb., 74; Gray v. Walton, 107 N. Y., 259; Gill v. McNamee, 42 N. Y., 44; Hoffman v. Connor, 76 N. Y., 121; Lawton v. Chase, 108 Mass., 238.
   Williams, J.

The record discloses that at the time of the execution of the written instrument on which the action below was founded, the maker, Glidden, had in store with the Union Storage Company, at Newcastle, Pennsylvania, 972 tons of pig iron, for which, he held the company’s nine storage warrants mentioned in the instrument. Each warrant bound the company to deliver the iron represented by it to the order of Glidden at the place of storage, upon payment of the -charges and surrender of the warrant properly indorsed. When the instrument sued on was executed by Glidden, he duly transferred the nine warrants to the bank for the purpose of pledging the iron as collateral security for the debt so contracted. On the 5th day of November, 1883, the debt having-then becomedue, and beingunpaid, the bank offered the ironforsale at public auction, after having published notice to that effect in some of the newspapers of Pittsburg; and the president of the bank, in its behalf, made a bid of ten dollars per ton for part of the iron, and eleven dollars per ton for the remainder, and all of it was struck off to him at those prices. Thereupon, the cashier of the bank notified the storage company of the purchase, and requested the ownership of the iron to be transferred at once to the president of the bank. That company made the transfer on its books, and thereafter from time to time, rendered its accounts for storage, against the bank,' which were paid by it. No demand of the debt was made of Glidden before the sale, nor was any notice of the sale given him, before or after it occurred; the first information he had with respect to it was when the action below was commenced in 1888. In the meantime, however, he had made no effort to pay his debt, and no inquiry concerning it, or the situation of the iron pledged for its security, for the reason, as he states, that he had become embarrassed. and was unable to pay the debt. At the time of the auction sale, the iron was worth in the market from sixteen to seventeen dollars per ton, and the defendant sought, by way of counterclaim, to compel the bank to account for the market value of the iron, as of that date, upon the ground that the sale constituted a conversion of it. An account upon that basis leaves a balance due Glidden. ■ After that sale the iron remained in store, as it had been before, at the same place, subject to the same charges, and without change in any respect, except the transfer of ownership on the books of the storage company to the president of the bank, and the entry of the storage charges against it, until February 7, 1887, when the bank sold fifteen tons of the iron at $20 per ton, and thereafter, in August and September, 1888, sold the balance for $16 per ton; and an account stated upon the basis of those sales, after deducting storage charges, leaves a balance due the bank. In making these sales, the officers of the bank believing in good faith it had become the owner of the iron at the auction sale, assumed to sell it as the property of the bank, and not under or in execution of the power of sale' contained in the instrument by which it was pledged; but it claims the sales were within the power thus given. ' The case here turns upon the question whether the first sale constituted a conversion.

The right of the pledgee to sell the article pledged, upon the non-performance of the pledg- or’s obligation, is the one characteristic which distinguishes a pledge from a common law lien; and, while the former is always accompanied with an implied power of sale, if none be expressed, it is often declared in the contract of pledge, and the exercise of the power may, of course, be regulated and controlled, and the rights and obligations of the parties with respect to the sale be specifically defined, by the express agreement of the parties. Where the power rests upon implication, the pledge cannot be sold without reasonable notice to the pledgor of the time and place of sale, for the reason that he is entitled to redeem up to the very time of sale, and should be afforded opportunity to be present at the sale to see that it is fairly conducted, and procure bidders, if he should so desire. This requirement of notice may be waived by the pledgor, either in the contract of pledge, or afterward; and by the agreement between the parties in this case, the bank was expressly authorized to sell the property pledged to it by Glidden, without notice. But there was no agreement that the bank might become the purchaser at any sale which should be made, and it is well settled, that in the absence of an express agreement to that effect, a pledgee cannot, directly or indirectly, become a purchaser at his own sale, for the satisfactory reason that he holds the property in a fiduciary capacity, which forbids the disposition of it for his personal benefit, and requires good faith and fidelity to the interests of the pledg-or in making a sale of it. His duty as a seller is inconsistent with his interests as a purchaser; and the principle that a trustee cannot be a purchaser at his own sale is applicable. Story on Bailments, section 319 — Torrey v. Bank, 9 Paige, 649-663; Chouteau v. Allen, 70 Mo., 290, 335.

The purchase for the bank, by its president, at the auction sale of November 5, 1883, was there-’ fore unauthorized, and its subsequent assumption of proprietorship unwarranted, unless ratified in some way by Glidden, which is not claimed; the sale was repudiated by him soon after he became aware of it, and ratification could not be presumed from his silence, for he was ignorant of the sale, and it was manifestly against his interest, having been made at a price much below the market value of the property. If the sale had been ratified, his right would have been to charge the bank with the price at which the property was so sold, and require the application of the proceeds, as of the daté of the sale, toward the satisfaction of his debt and the charges against the property; and in that case, he would have remained liable for the balance due on his debt. And, it appears to be established by the great weight of authority, that such a sale, when repudiated by the pledgor, is not a conversion, where no change has occurred in the actual condition and situation of the property. The relation of the parties remains the same as before the sale, the pledgee continuing to hold under the contract of pledge, leaving the title to the property and rights of the parties unaffected, as though no sale had been attempted. Indeed, in such case, it is said there is no sale for want of a competent purchaser. Bryan v. Baldwin, 52 N. Y., 232; Bank v. Minot, 4 Met. (Mass.), 325; Stokes v. Frazier, 72 Ill., 428; Killian v. Hoffman, 6 Bradw. Ill., 200; Insurance Co. v. Dalyruple, 25 Md., 242; Bank v. Railroad Co., 8 Clark (Iowa), 277; Canfield v. Minneapolis A. & M. Ass’n, 4 McCrary, 646; Duncomb v. R. R. Co., 84 N. Y., 205; Halliday v. Holgate, L. R., 3 Exch., 297; Day v. Holmes, 103 Mass., 307, 311; Donald, v. Sukling, L. R., 12 B., 585.

The rule results from the nature of the contract between the parties. Under a contract of pledge, the right of the pledgee to retain possession of the property continues until the debt or engagement for the security of which it was pledged has been discharged by payment or performance, or a tender, and demand for its return; and his obligation is, to keep the article pledged, with due care, and restore it to the pledgor upon the performance of his agreement. On the other hand, in the absence of any stipulation to the contrary, it is the duty of the debtor to seek the creditor at the proper place and pay the debt, or tender its payment, before he is entitled to receive back the pledge. These obligations of the parties are reciprocal, and neither can require performance by the other without himself being able and ready to perform on his part; so that, the possession of the pledgee being lawful as long as he retains the actual control and custody of the pledge, with the ability to perform his obligation by restoring it, he is not in default, until a demand, accompanied by a tender of the debt is made. If he then refuse or fail to restore the pledge, he may be • charged with its value. The action for its recovery, though treated as one for conversion is, in reality founded on the breach of the contract; and hence, the creditor is entitled to recoup his debt.' Until the breach occurs, no right of action accrues in favor of the pledgor; suffering the debt to run unsatisfied after maturity, does not destroy the pledgee’s lien, or the pledgor’s right to redeem. Wheelan v. Kingsley, 26 Ohio St., 131; Jones on Pledges, sections 543, 566, 571.

The pledgor may, undoubtedly, refuse to recognize a sale made by the pledgee to himself when such a sale is not expressly authorized; but he cannot affirm it in part and .reject it in part; he cannot adopt it so far as to make it effectual to transfer the title to the pledgee, and at the same time reject it as to the price, and terms of the sale; nor, can his rejection, which has the effect of defeating the -pledgee’s title under the sale, at the same time destroy the lien of the latter under the contract of pledge. The sale must be either accepted or rejected as an entirety; and when so rejected, and the pledgee remains in the possession and control of the property, with the ability to perform his contract by restoring it to the pledgor on demand, the contract of pledge continues in force, and the pledgee’s possession, being referable to the contract, is as lawful as before the sale: and, therefore, he can be charged with a conversion of the property only upon his refusal or failure to return it on the performance, or tender of performance of the pledgor’s obligation. The observation sometimes met with in the opinions of judges, and in text books, that the pledgor is at liberty to treat an unauthorized sale of the pledged property as a conversion -by the pledgee, must be taken to refer to such a sale as puts the property bej^ond the control of the pledgee. In cases of that kind the pledgor may charge the pledgee as for a conversion of the property without demand or tender of performance though he is not bound to do so, but may, by subsequent tender and demand, require the pledgee to account for the market value of the property at that time. And of course, it is not the right of the pledgee to insist that his wrongful sale constitutes a conversion, for that would enable him, if he were allowed to do so, to take advantage of his own wrong’, and by his own violation of the contract determine the time, and thus the measure of his liability for its breach. As has already been stated, no offer was made by Glidden, at any time, to pay the debt he owed the bank, nor was any demand made for the return of the iron held in pledge; and, after it was bid off by the president of the bank, on the 5th day of November, 1883, it remained in the control of the bank, as it had been before, without change in any respect, up to the 7th day of February, 1887, when, under the sale that day made, part of the iron passed into other hands; so that, until that time, the bank’s possession was lawful, and it was able to perform its obligation to • Glidden by returning the iron to him, upon payment of his debt. It had, up to that time, exercised no actual dominion or control over the property inconsistent withGlidden’s right to redeem; and the saleof November 5, 1883, being ineffectual to transfer the title, did not, we think, constitute a conversion of the property, which, in legal contemplation was still held under the contract of pledge:

But, by the sale of February 7, 1887, a part of the property pledged, passed beyond the control of the bank, and it was thereafter no longer able to perform its contract with Glidden by making return of the iron to him; and if that sale was unauthorized by the terms of the pledg-e, he might rightfully claim there was then a conversion of the whole of the property, without tender or demand by him. The obligation of the pledgee being to return all of the property pledged, a conversion of part may, at the election of the pledgor, be treated as a conversion, of all, for he is entitled to the return of the very thing pledged, and is not obliged to accept a part of it only. Nor is a tender of payment, and demand for the property necessary where the pledgee has put it out of his power to comply with the demand, and make restoration of the pledge, in order to entitle the pledgor to maintain an action for its wrongful sale. Such tender and demand, when the pledgee has thus incapacitated himself to perforo, his part of the contract, are ex-excused because the act would be a useless ceremony which the law never requires. Cortelyon v. Lansing, 2 Caine’s cases, 200; Alden v. Pearson, 3 Gray, 342, Fletcher v. Dickinson, 7 Allen (Mass.), 23; Wilson v. Little, 2 N. Y., 443.

Whether the sale of February 7, 1887, was made in violation of the agreement between the parties, so as to render the bank liable for the market value of the property at that date, or whether that, and the subsequent sales were made in pursuance of the power conferred by the contract, which, if so made, would limit the bank’s liability to the amount of the net proceeds of those sales, are questions not now before us, and upon which we express no opinion. Issues of fact are joined by the pleadings concerning them, upon which the parties are entitled to have a .trial by jury. In the decision of the question, upon which the judgment below was reversed, the circuit court, we think, committed no error; and its

Judgment is affirmed.


text:
    City of Zanesville v. Fannan.

      Municipal corporations — Power and duty as to streets under their control — Sections 1878 and 2640, Rev. Stat. — Statute creating new right — Remedy exclusive or cumulative, when — Railway tracks in public street — Obstruction to drainage — Respective liabilities of municipality and railway company — Section 3283, Rev. Stat.

    1. Municipal corporations are invested with the power and charged with the duty of keeping the streets and highways under their control free from nuisance; (Revised Statutes, sections 1878, 2640), and a liability arises from the omission to perform that duty, for damages resulting from such nuisance after notice to the municipal authorities of its existence; and, though the person who caused the nuisance inay be also liable, and responsible over to the corporation for whatever damages it is compelled to pay in consequence of it, that does not affect the liability of the municipality to the party injured.
    2. Where a statute which creates a new right, prescribes the remedy for its violation, the remedy is exclusive; but when a new remedy is given by statute for a right of action existing independent of it, without excluding other remedies already known to the law, the statutory remedy is cumulative merely, and the party may pursue either at his option.
    3. Railroad companies which had obtained permission from a municipal corporation to lay their tracks in a public street, so constructed them as to obstruct the drainage provided for the street, in consequence of which water from rainfalls was accumulated and forced on to and over the plaintiff’s lot abutting on the street, flooding the cellar of his dwelling house thereon situate, and otherwise injuring his premises. The municipal authorities being notified of the situation and requested to remove the obstruction, declined to act. Held, in an action against the municipal corporation: '
    1. The obstruction constituted a nuisance, and the municipality is liable for the damages occurring from it after the notice and refusal to act.
    2. That its liability is not affected, nor the remedy against it taken away, by section 3283, of the Revised Statutes, which gives the party injured a remedy against the railroad companies.

      3. But in the action against the municipal corporation, the plaintiff is not entitled to recover damages which are in the nature of compensation for the additional burden in the street arising from the location and construction of the railroad tracks therein; for damages of that character the municipal corporation is not liable. Steubenville v. McGill, 41 Ohio St., 235, approved. Dillenback v. Xenia, 41 Ohio St., 207, distinguished.
    (Decided December 17, 1895.)
    Error to the Circuit Court of Muskingum county.
    The original action was brought by Fannan against the city of Zanesville, in the court of common pleas of Muskingum county. The petition alleges, that the defendant is a municipal corporation of this state, and since the year 1880, has been a city of the third, grade of the second class ; that Zane street, and some other streets connecting with it, are, and since the year named have been, public streets of the defendant, and Rishtine alley is and has been a public alley within the city; which streets and alley the defendant had improved by gutters, drains, and by widening, and otherwise, prior to the occurrences complained of; that the plaintiff, since the year mentioned, has been and still is the owner of a lot fronting on Zane street, and bounded by Rishtine alley in the rear, and that relying on his right to the free and unobstructed use of the street and alley for all lawful purposes, he improved his lot by erecting thereon a dwelling’ house, which he occupies as a home, and made other convenient improvements thereon, to the enjoyment of which, the use of the street and alley, and their connecting streets, is necessary.
    The petition then alleges that:
    “On the 30th of November, A. D. 1887, the defendant, by its city council by ordinance, which went into effect, consented and authorized certain railroad companies, to-wit: Two corporations, one entitled ‘The Zanesville, Newcomerstown and Cleveland Railway Company, ’ and the other ‘ The Zanesville, Mount Vernon and Marion Railway Company,’ to take possession of and use the westerly end of Zane street, from the north line of said street near the southwest corner of lot 18 in said addition, to and across said Rishtine alley, and thence to said Fifth and Howard streets, and also that much of said alley, for the purpose of constructing, maintaining and operating railroads thereon. The said The Zanesville, Newcomers-town and Cleveland Railway Company — having no line of its own — afterwards transferred the rights granted it as above stated to the Baltimore and Ohio Railroad Company; and thereupon said last named company — a corporation — which then possessed all necessary main tracks required by it along its line — and the said The Zanesville, Mount Vernon and Marion Railway Company, took possession of the whole of said part of said Zane street and of said part of Rishtine alley, and of said way leading to Fifth and Howard streets, and laid tracks thereon, raising embankments, where said tracks crossed the city gutters and drains in said street and alley, and putting down cross ties and laying and fastening iron rails thereon and using and operating the same for railway purposes, transporting to and fro cars and engines, and entirely blocked and obstructed said part of said street and said part of said Rishtine alley, completely destroying the western entrance and approach to said alley, and wholly obstructed and prevented passage through said street and alley and the use thereof; and . ever since on or about the twenty-eighth (28) day of November, A. f). 1889, the said parts of said street and alley, by reason of the premises, have been and are now, wholly' obstructed and rendered useless for the purposes for which they were laid out and appropriated, and the plaintiff and his family have been, and are, deprived of access by wagons and teams to the rear of said lot by said alley, and have no other access thereto; and said railroad companies, by the laying of such track, have encroached and advanced upon the real estate of the plaintiff above described — with the consent and permission of the defendant and its officials. Moreover, the said embankments and track of said railways have during said time so obstructed, and do now so obstruct the passage of water along the aforesaid public gutters and drains in said street and alley from the higher, ground east of plaintiff’s said lot, that said water in each heavy rain because of said embankment and track has overflowed said gutters and drains and came upon plaintiff’s lot and into his cellar; by reason of all said acts, ■ said overflow of said waters, and difficulty of ingress and egress, the occupancy of plaintiff’s said dwelling and lot has become uncomfortable and undesirable, and the value of his said dwelling, lot and appurtenances has been greatly diminished; all without compensation or damages paid, tendered or offered to the plaintiff therefor by any person or corporation whatever. On and after the 9th day of December, A. D. 1889, the defendant, by its city council, was duly and fully notified of the aforesaid obstructions of said street and alley, and of the matters hereinbefore alleged, and prayed for the restoration of said street and alley and the removal of said obstructions from each of them and from said drains, but the defendant and its officials wilfully failed, refused and neglected to remove or cause to be removed said obstructions from said street and alley, and said obstructions now continue contrary to law, and without any fault, permission or negligence of the plaintiff, whereby he has been damaged in the sum of one thousand dollars in the particulars and in the manner aforesaid.”
    A general demurrer to the petition was overruled, and upon trial of the issues joined, the plaintiff recovered a judgment, which was affirmed, on error, by the circuit court; from that judgment of affirmance this proceeding in error is prosecuted.

      Isaac Humphrey, for plaintiff in error.
    It was under the authority of section 3283, Revised Statutes, that the city of Zanesville, by its council, granted the railroads the privilege of occupying the streets and alleys, complained of in Fan-nan’s petition. That the city council had a perfect right to pass the ordinance, granting the railroads the occupancy of the streets, under this statute there can be no question. In fact the city had no alternative, as under the above quoted statutes, the railroad could take by condemnation what they sought, if the authorities of the city failed to come to an agreement, and the law makes it incumbent on the authorities of the city and railroads, to agree if possible. No hardship is worked upon the abutting property holders in this case as the statute makes every provision for them. In case of damage, they can bring an action against the railroad companies at any time within two years; and even though the railroad companies were not financially responsible; an injunction would stop their operations until a settlement was made. We do not understand that the city can be held responsible for damages, when they grant privileges to railroads under this statute, in any event, and it has been so held in at least one decision of the supreme court of Ohio, that of Dillenbach v. City of Xenia, 41 Ohio St., 207. See also, 45 Ohio St., 309; 40 Ohio St., 496 ; 38 Ohio St., 41; 35 Ohio St., 284.
    We think that Fannan’s remedy was clearly against the railroad companies and not against the city.

      Granger <& Granger, for defendant in error.
    First — -Did the city after having accepted said streets and alleys have the power to improve the same, make drains and gutters, etc., on them?
    Second- — Having the power to make said drains and gutters, and having exercised such power, what is the duty and liability of the city as to said drains, gutters, etc.?
    The words of sections 1692, 2403, 2404 and 2640, Revised Statutes, plainly and clearly confer upon the city council the power to improve streets, etc., and make drains, sewers and ditches for the purpose of draining them and to repair them when made.
    The second question to be considered is, what is the duty and liability of the city as to its drains, gutters, etc.? Section 2640, already quoted, concludes with this imperative clause: “And shall cause the same to be kept open and in repair, and free from nuisance. ’ ’ This section confers no discretionary power ; it is mandatory.

      Among the special powers, the exercise of which is for the private benefit and advantage of the municipality, is that which authorizes them to construct, control, and repair common sewers, and accordingly the grant of this power is regarded as raising an implied promise on the part of the corporation to perform with fidelity and care all duties growing out of its exercise, and this promise inures to the benefit of every individual interested in their performance. Am. & Eng. Ency. of Law, vol. 6, page 23; Cooley’s Const. Lim., 304; Win v. Rutland, 52 Vt., 481; People ex rel. v. Common Council of Detroit, 28 Mich., 228; 15 Am. Rep., 202; Note to Conrad v. Trustees of Ithaca, 16 N. Y., 158.
    While the g’rant of these discretionary powers raises an implied promise or obligation on the part of the city generally, our case is even stronger. Our legislature was not content to rely upon- this implied promise or obligation; so they made the implied obligation an express obligation of the city by enacting said section 2640.
    In respect to such duties a city or village is not a mere municipal corporation, but is a private one; and liable on the same principles, and to the same extent, as private corporations. Lloyd v. City of New York, 5 N. Y., 369; Hill v. City of Boston, 122 Mass., 344; 23 Am. Rep., 332.
    Ministerial duties as distinguished from those which are discretionary or quasi judicial, are said to be such as are absolute, certain and imperative. Mills v. Brooklyn, 32 N, Y., 489.
    The right conferred upon municipal corporations to construct sewers imposes no imperative duty to construct them. The duty created is in its nature judicial, requiring the exercise of deliberation, judgment and discretion. It follows that the corporation is not liable to a civil action for failing to exercise the power, nor for any error of judgment in its exercise. But having once elected to act under this power, and by ordaining the Construction of a sewer determined that the necessity for one exists, the judicial duty and discretion ceases, and the prosecution of the work becomes at once ministerial in its character, and where a judicial duty ends and a ministerial duty begins, there immunity ceases, and .liability attaches. Rhodes v. Cleveland, 10 Ohio, 159; same case approved in Barnes v. District of Columbia,, 91 U. S., 551; 6 Am. and En. Ency. of Law, 28; Nims v. Troy, 59 N. Y., 500; section 1045 of Dillon’s Mun. Corp.; Barton v. Syracuse, 36 N. Y., 54; section 1051 (Dillon); Mr. Gould on Waters, 272.
    The eitjr is liable if the embankment of a street railroad, properly authorized, causes the surface water of a large district to flow upon adjoining premises. Damour v. Lyons City, 44 Iowa, 276; Swenson v. Lexington, 69 Mo., 157; Inman v. Tripp, 11 R. I., 520; Murphy v. Indianapolis, 83 Ind., 76; 32 W. L. B., 378; Steubenville v. McGill, 41 Ohio St., 235.
    Plaintiff in error relies upon section 3283, Revised Statutes, as relieving it from responsibility and liability.
    But while exercising discretionary powers under section 3283, Revised Statutes, the plaintiff in error is not relieved from liability imposed by section 2640, Revised Statutes. But was not the city also liable to him because it permitted said railway companies to completely destroy Zane street as a thoroughfare? Railroad Co. v. Defiance, 52 Ohio St., 262.
   Williams, J.

The question argued by counsel, and the only one presented by the record, is whether the facts stated in the petition entitle the plaintiff to any .part of the relief demanded. It is contended they do not, because by section 3283, of the Revised Statutes, a remedy is given against the railway companies that placed the obstruction in the streets of the defendant which caused the damages suffered by the plaintiff.

That section reads as follows: “If it be necessary in the location of any part of a railroad, to occupy any public road, street, alley, way or ground of any kind, or any part thereof, the municipal or other corporations, or public officers or authorities, owning or having charge thereof, and the company may agree upon the manner, terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals; but every company that lays a track upon any such street, alley, road or ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track. ”

If the defendant had put its streets in the condition complained of, its liability could not be doubted. Rhodes v. Cleveland, 10 Ohio, 159; DilIon on Mun. Corp., 4th Ed., sections 1017, 1018; Beach on Pub. Corp., section 1494. Any permanent obstruction or incumbrance in any street of a municipal corporation is made a nuisance by statute (Revised Statutes, section 6921), which the municipal authorities are invested with the power and charged with the duty of removing. (Revised Statutes, sections 1690, 1878, 1934 and 2640.) And those powers and duties continue when a railroad company has placed its tracks in a public street, whether they were so placed under permission granted by the municipality, or under an appropriation for that purpose. In neither event are the municipal authorities divested of their powers, nor absolved from the per for manee of their duties. Nor, does section 3283, contemplate that a railroad company in the useof a street for the purposes of its road, under a right acquired in either of the .modes provided, may destroy the same, or create nuisances therein. On the contrary, it contemplates that the company shall exercise its rights with proper regard to those of the public in the street, and that the street and its uses by the public shall be preserved and protected, with such additional use as may be necessary in the proper operation of the railroad, which is itself a means of public use. If the permission to occupy the street be granted by the municipal authorities, they may, and should prescribe such reasonable regulations and conditions as will prevent the creation of nuisances, and preserve, and best protect the free and full use of the street by the public. And in the proceeding to acquire the right by appropriation, it cannot be assumed as a proper basis for the estimation of compensation or damage, that the company will destroy the street, or create nuisances therein.

The next section requires that such companies, when a public highway is crossed or diverted by their roadway, shall with reasonable promptness restore the highway to its former condition of usefulness; and this requirement of the statute is but a declaration of the common law rule. “The common law rule is clear,” says Tiedeman on Municipal Corporations, section 306, “that when a railroad company or other corporation lays out a railway or canal across a public street or highway, it must restore and afterwards keep the highway in the same condition in which it was originally used by the public. This duty is imposed upon such a company by implication of law, where there is no express statutory requirement.” And see State v. Railway, 35 Minn., 131; Railroad v. Defiance, 52 Ohio St., 262, 314. This obligation of the company is inseparably connected with the right to use the highway, and is a condition to the exercise of that right, which it may be compelled to perform so long as it continues to use the highway, either by appropriate proceedings by the state, or by the local authorities. State v. Railroad, 36 Ohio St., 434; Railroad v. Commissioners, 31 Ohio St., 338. The duty rests upon the principle that the public use is the dominant interest in the street, and that it continues to be so notwithstanding the construction of the railway in or across it. Thereafter, the rights of the public and the railway company are co-ordinate and equal, and the latter is bound to so construct and use its roadway as not to interfere with the use and enjoyment of the street by the public further than is essential in the proper operation of the road; and the principle applies as well when the railway is laid lengthwise in the street, as when it is laid across it. And hence, as said by the supreme court of Michigan, in Detroit v. Ft. Wayne & E. Railway Co., 90 Michigan, 646. “A city is not under obligation to conform its treatment of its streets to the construction of the railroad company’s road bed, but, on the contrary, the company must conform the construction of its road bed to such reasonable regulations as are made by the municipality in the reasonable exercise of its powers respecting the use, control and regulation and improvement of its streets.” And that obligation, the authorities maintain, may be enforced by mandamus or other proceeding. Elliot on Roads, page 600; Cooke v. Railroad Corporation, 133 Mass., 185; Manleys. St. Helen, etc., Railroad Company, 2 Hurl. 6 N., 840; Railroad Company v. State, 37 Ind., 489; State v. Gorham, 37 Me., 451; Cambridge v. Railroad, 7 Met., 70; Rex v. Railroad, 9 Car & P., 494; State v. Railroad, 36 Ohio St., 434; Railroad v. Commissioners, 31 Ohio St., 338; Detroit v. Railway Co., supra.

The streets of a municipal corporation, then, remaining within its control and supervision, attended with the duty to keep them free from nuisance, notwithstanding the laying of a railway therein, can it be relieved from liability for its negligent omission of dutjq because the railway company is itself answerable for the damages occasioned by a nuisance caused by it? In section 1037, of Dillon on Mun. Corp., it is said: “Towns an cities in the New England States are obliged, as we have seen, by statute, to keep their highways and streets in repair, and railroad companies in the same states have frequently been authorized by law to construct th&vr roads over public highways and streets, the effect of which may be to cause the latter to be out of rep>air. Under these circumstances the question arises, if a person suffer damage by reason of a defective highway or street thus occasioned, who is responsible, the railroad company which caused the defect, or the town or city which is charged with the general duty of maintaining and keeping in repair the public way ? The course of decision is to hold the town or city primarily responsible to the person sustaining the injury, thus compelling it, when liable, to seek indemnity from the railroad company.” The author cites many cases in support of his statement, and in a note to the section it is said the rule holds good in other states; and among the other cases cited to the note is Steubenville v. McGill, 41 Ohio St., 235. It is further said in the note, that the person sustaining the injury “may, of course, elect to proceed at once against the railroad- company if he chooses. The primary duty is on the city, although, as between it and the railway company the latter is bound to repair. ’ ’

These views are fully supported by the cases. In Sides v. Portsmouth, 59 N. H., 24, it is held: “If a railroad, having the right to cross a highway, does not leave it reasonably safe, and a person is injured thereby, the town may be held liable.” Bingham J., in that case, says: “If a railroad company, acting under their charter, creates an obstruction in the highway by which a traveler sustains damage, the town is answerable as if the same acts had been done by an individual. ’ ’

Scranton v. Catterson, 94 Pa. St., 202, was a case where a party received an injury by reason of a water plug which was placed in a street of the citjr of Scranton, by a water company under authority from the state, before the city became incorporated. The city asked the court to charge the jury that if it (the plug) was so placed in the street under such authority, it was not liable; which the court refused to do. On error, the supreme court affirmed the judgment, holding: “That it mattered not who placed the obstruction in the street provided the city had notice of its existence and failed to remove it. ” So, in Eyler v. Commissioners, 49 Md., 257, where a person was injured by reason of a defective bridge which had been erected in a public highway by a canal company, which was charged with the duty of keeping the bridge in repair, the county commissioners, however, being required generally to keep all public bridges in repair, it was held the commissioners were liable. The court say: “The fact that the canal company is bound to repair the bridge does not absolve the county commissioners from their primary duty to the public, nor is their liability affected by the fact that the appellant could, if he had chosen, have brought his action against the canal company.” But, says the court, “while we thus maintain the liability of the commissioners to the appellant in this action, the canal company is by no means discharged from its obligation to maintain and repair the bridge, nor are the commissioners left without remedy against the company. Upon the principles decided in many of the cases referred to, as also by the supreme court of the United States, in The City of Chicago v. Robbins, 2 Black., 418, and4 Wal., 657, they may have their remedy over against the company for whatever damages may be recovered against them in this action.” Among the authorities in the same line which we have examined, are the following: Phillips v. Veazie, 40 Me., 96; Currier v. Lowell, 16 Pick., 170; Elliot v. Concord, 7 Foster, 204; State v. Gorham, 37 Me., 451; Watson v. Tripp, 11 R. I., 98; Krittredge v. Milwaukee, 26 Wis., 46; Swenson v. Lexington, 69 Mo., 157, 166, 167.

In the ease of Steubenville v. McGill, 41 Ohio St., 235, this court held a city liable for injuries caused by an excavation made by a railroad company between its tracks which were laid in a street of the city under an ordinance granting the company the authority to place them there. The city pleaded the ordinance as relieving it for responsibility for so much of the street as was occupied by the railway, averring that the place where the plaintiff was injured had not been used, maintained or kept up as a street or highway since the railroad was constructed, and was in the exclusive possession of the company. In affirming a judgment sustaining a demurrer to the answer, the court held: “The city’s supervision of and responsibility for the street subject only to the use by the company as granted, continued. ’ ’

And in Cardington v. Fredericks, 46 Ohio St., 442-447, it is declared, that section 2640, of the Revised Statutes, which gives to municipal corporations the care, supervision and control of their public streets and enjoins upon them the duty to keep the same open and in repair and free'from nuisance is, “in effect, a requirement that the corporation shall prevent nuisances therein;” and, “by allowing a street to become so out of repair as to be dangerous, the corporation itself maintains a nuisance;” and, although the statute does not in terms declare a liability for the failure to perform the duty, “a right of action for damages caused by such neglect arises by the common law. ”

The municipal corporation being, then, liable at common law for permitting a nuisance in a street under its control, and railroad companies, like an individual, being also liable for creating such a nuisance, section 3283, in so far as it provides for an action against the railroad company for damages thus caused, creates no new right, nor does it purport to take away any of the remedies existing- at the time of its enactment. The rule is well settled, that where a statute creates a new right, and prescribes the remedy for its violation, the remedy thus prescribed is exclusive ; but when a new remedy is given by statute for rights of action existing independent of it without excluding’ other remedies already known to the law, the statutory remedy is cumulative merely, and the party may pursue either at his option. Darling v. Peck, 15 Ohio, 65-71; Dunn v. Kanmacher, 26 Ohio St., 497; Portland v. Railroad Co., 66 Me., 485.

We conclude, therefore, that section 3283, of the Revised Statutes, does not take away, or affect the remedy against the municipal corporation in cases of this kind. But, that section has a purpose and scope somewhat beyond that of giving a remedy ag’ainst the railroad company for damages in this class of cases. It authorizes the recovery of damages which are in the nature of compensation for the additional burden in the street arising from the proper construction and operation of the railroad therein, such as the adjacent property owner would be entitled to, in an appropriation proceeding’ instituted by the company, or a proceeding to compel an appropriation. For damages of that character, we apprehend, the municipal corporation cannot be held; and, in that, we think, consists the distinc tion between the ease of Dellenbach v. Xenia, 41 Ohio St., 207,and that of Steubenville v. McGill, supra, and also this case. There being no showing in the record to the contrary, we must assume the plaintiff was properly limited in his recovery by the trial court.

Judgment affirmed.