author: Minshall, J.

text:
    The Tiffin Glass Company v. Stoehr.

      Practice — Pleading—Statement of facts in petition — Claim for amount due as wages instead of as damages — Not material as to right of recovery — Liability of corporation in damages to agent — Section 5684, Revised Statutes.

    1. Where, on the facts stated in a petition, a plaintiff is entitled to a judgment for money, the fact that in his petition he claims the amount to be due him as wages on a contract of employment, instead of as damages for the breach of it, is not material, to his right of recovery. A misconception of this kind must be disregarded in passing judgment upon the pleading.
    2. Where a corporation is liable in damages to an agent for having wrongfully discharged him from- its service under a contract for a definite period, and is subsequently dissolved by the judgment of a court on the petition of its stockholders, it remains liable to the party injured notwithstanding the dissolution. ■ Section 5084, Revised Statutes.
    (Decided February 25, 1896.)
    Error to the Circuit Court of Seneca county.
    Noble, Keppel <& Noble, for plaintiff in error.
    1. We claim that when a corporation is found to be clearly insolvent, it has no right to go on incurring liabilities which it is unable, and has no prospect of ever being able to pay. But that, in such case, it has the legal power, and the legal right, to discharge its employes; and that it is its duty to do so. This it did, by notifying the plaintif below to quit and seek other employment.
    2. We claim that when a court of competent jurisdiction has rendered a judgment, or decree dissolving a corporation, and placing all its property and effects in the hands of a receiver to close up its business — from that time forth it has no power, as a corporation, to receive or pay for services, and all contracts for such services must end with its existence.
    3. And even if the contract between the'parties was not legally canceled, by such dissolution of the corporation, we claim that when the plaintiff below received notice, that the corporation had ceased to do business, and could go no further, and notifying him of his discharge from such employment, he was bound to seek other employment, and was not at liberty to refuse it, because the amount offered was not as much as he contracted for with the defendant, nor because the offer of employment was for less than a year, or because accepting for a shorter term might interfere with his chances for a permanent position. But he was bound to accept in good faith, and use his time to the best advantage.
    It really seems that there could be no question that death, or dissolution ought to end all contracts for service. A dead servant certainly could not serve a live master; nor could alive servant serve a dead master. This we take for granted. ■
    The question of death or dissolution is a mere question of fact, and like any other fact is to be alleged and proved. The death of a servant could easily be proved, but how is it as to the death or dissolution of a corporation ? It may be said that this requires the actions of a court, to give it force and effect. The statutes of Ohio relating to the dissolution of corporations will be found in Chapter V, and embraces sections from 5651 to 5688, inclusive.
    As the death of a natural person revokes all authority given to his agents, or servants, so must the dissolution of a corporation, whether brought about by limitation, forfeiture of charter rights, or judgment of a court of competent jurisdiction, for then there is no master to serve or pay for services. Angel and Ames on Corporations, section 289; Wood’s Master and Servant, 189, par. 95; Wood, 306, section 158; Wood 532, section 276. Dissolution of a firm by death ends the contract for service on both sides. Wood, section 163; Wolf v. Hoos, 20 N. Y., 197. In this case the plaintiff below has entirely mistaken his remedy, if any he has.
    In both his original and supplemental petitions, he brings his actions upon a memorandum of agreement, entered into between himself, on the one part and The Tiffin Glass Company, by Joseph K. Brown — not so designated but supposed to be an agent of The Tiffin Glass Company — on the other part.
    In his supplemental petition he admits, that on the 26th day of December, A. D. 1890, the said defendant below notified him that it had no further use for his services, and that he should seek other employment.
    And we claim, that, thereupon he recognized the fact that he had been discharged, by seeking, and, after a time, accepting other employment. But at the same time he continued to pursue his remedy upon the contract, the same as-if it had been fully kept and performed by him.
    That his employer had the legal power to dismiss or discharge him from his service, there can be no question.' The employment of one, as a servant, or an agent, implies such confidence on the part of the employer, that the law recognizes his absolute power to dismiss or discharge him, with or without good reason therefor. If the discharge is for good and sufficient reasons, then the agent or servant has no right of action, unless it be on quantum meruit, for • any amount due for past services. But, if the discharge, on the contrary, be wrongful, then the remedy of the employe is by action for the breach of his contract. Meachem on Agency, section 204; James v. Allen County, 44 Ohio St., 226.

      Seney ds Scq/ler, for defendant in error.
    In the case at bar the question whether Stoehr may recover in damages for his loss, resulting from the dissolution of the Glass Company depends upon whether the dissolution resulted from the act of the stockholders. If the company was dissolved by the voluntary agreement of its stockholders, or dissolved upon their petition therefor by the order of a court, the agreement in suit is in full force, and the loss to Stoehr may be recovered from the company. Woods, Master and Servant, section 165.
    But the agreement is in force and the loss of Stoehr may be recovered from the company although dissolved either by the order of a court or by the act of the stockholders. The record shows that the company committed a breach of the agreement in discharging Stoehr from its service without cause, in December, 1890. Two months after his discharge (in February, 1891), the order of dissolution was made. Surely, during these two months the company was liable to Stoehr for this breach and as surely, the liability was not discharg’ed by the subsequent dissolution of the company.
    The agreement, it will be observed, obligated Stoehr to serve the company until January, 1892, and obligated the company to- pay him wages for that period. Where the servant is employed for a definite period, the master is bound to provide the servant with labor for the whole period. The fact that the business is unprofitable, is no excuse. If the master chooses to quit business he may do so, but he must pay the servant his damages for failing- to give him employment for the whole period. Woods, Master and Servant, section 97; Angell and Ames on Corporations, section 318; Story on Agency, section 339; Lewis v. Atlas Insurance Co., 61 Mo., 534; Reeve v. Boston Coffee Co., 15 Pick., 351.
    Now in the case at bar, it will be borne in mind, that The Glass Company dismissed Stoehr from its service without legal cause when the company had full corporate life and was conducting the business for which it was incorporated. In other words, the breach of the agreement — namely, the discharge of Stoehr without leg-al cause, was committed two months before the order dissolving- the company was made by the court. It will be borne in mind, also, that The Glass Company was not dissolved by the act of the state, but, by the agreement of all of the stockholders and. upon their petition therefor.
   Minshall, J.

The action below was brought by Daniel H. Stoehr against the Tiffin Glass Comyany for the amount due him upon a contract of service. By the contract the company had employed the plaintiff as a traveling salesman in its business at thé rate of $150 per month from July 1, 1890, to January 1, 1892, and his expenses. The plaintiff entered upon his employment and continued to serve the defendant until December 26, 1890, when the company, being in embarrassed circumstances and having no further use for his services, discharged him. On March 5, 1891, he commenced suit for the amount, $486.74, then due him, 'March 1— being the difference between his salary and expenses at that time and the amount that had been paid him. After the expiration of his term of service, on January 15, 1892, he filed a supplemental petition, in which he averred that after diligent effort to obtain employment he had been able to earn but $875.72, that in his efforts to obtain employment he had expended $134.92, and so that, allowing a credit for what he had earned, there was due him the additional sum of $759.18, with interest, for which, with the original sum claimed, he asked judgment. The defendant answered. The making’ of the agreement was admitted ; but issue was taken upon many of the other averments; and, as a separate defense, it 'was averred that on February 1, 1891, the Glass Company was, by order of the court of common pleas of Seneca county, in a proceeding duly instituted, declared dissolved, and that it thereafter had no legal existence or power to do business or to accept or pay for the services of the plaintiff. The case was tried to the court, which found the averments of the petition and supplemental petition to be true; and, whilst it did not allow the plaintiff for the expenses incurred by him in his efforts to obtain employment, rendered judgment in his favor for the amount due according to the agreement, less the amount paid him and what he had earned, making $1,187.32.

A motion for a new trial was made and overruled, • and, on error, the judgment was affirmed by the circuit court. Two errors are relied on: (1) That the plaintiff mistook his remedy, and (2) That by the dissolution of the corporation, it ceased to exist, and was no longer liable on its contract of employment with the plaintiff.

1. As to the first objection that the plaintiff mistook his remedy; this is based, we think, on a misapprehension of the character of the plaintiff’s petition. It is claimed to be an action to recover the wages due the plaintiff on the contract, whereas it should have been to recover damages for the breach of it. We agree with the counsel that, on the facts’as pleaded, the plaintiff could not, properly speaking, recover for wages on the contract, and that his right of recovery was damages for the breach of it. But the facts pleaded, the making of the contract, his discharge, efforts to obtain. employment, and the allowance of what he earned thereby, entitled him to recover as damages the difference between what he earned and what he would have received, had he not been wrongfully discharged. James v. Allen County, 44 Ohio St., 226. And under the liberal principles of our code, it can make no difference what he termed the number of dollars he conceived himself entitled to recover, provided that on the facts stated, he was entitled to recover' something. The judgment rendered was in fact for damages and not for wages; it was for what the plaintiff lost by the breach of the contract by the defendant. The plaintiff then did -not mistake his remedy. He had but one, the civil action of the code. This simply required a statement of the facts on which he conceived himself entitled to a recovery of money from the defendant. The petition conformed to this requirement, and stated a cause of action. A prayer for relief is no part of a cause of action. It is the legal consequences which the plaintiff conceives the law attaches to his statement of facts; and if as a matter .of law, he is right, his petition states a cause of action.

2. As to the.second point, that the dissolution put an end to the life of the corporation, and terminated its liability on the contract to the plaintiff. What has already been said, in part answers this contention. By the breach of the contract an end was put to the relation of master and servant; and a new right accrued in favor of the plaintiff as against the defendant — a right to recover damages for the breach of the contract. This is called bj^ some authors a “sanctioning” and by others a “remedial” or “secondary,” right. Poste’s Gaius, Preliminary Definitions, 4; Pomeroy, Code Remedies, sections 1, 2. It was not then necessary to the remedy of the plaintiff that the relation of master and servant should have subsisted between the parties to the end of the time of employment in order to recover damages; and, therefore, the proposition that there can be no such thing as a servant without a master, misconceives the nature of the plaintiff’s right, and is without force.

The right of the plaintiff accrued at the moment of the breach of the contract by the defendant, which it will be observed, was before the dissolution of the corporation; and by the statute, section 5684 Revised Statutes, it is provided that: “Any such dissolved corporation may be sued by its corporate name, for or upon any cause of action accrued, or which, but for the dissolution, would have accrued against it, in the same manner, and with the like effect, as if it were not dissolved.” Hence, the dissolution of the corporation in no way affects the right of the plaintiff arising from the breach of the contract of employment. The defendant’s liability remains the same as if there had been no dissolution.

We are referred to the case of People v. Insurance Co., 91 N. Y., 174. That case is not in point here. There, at the suit of the state, the company was enjoined from doing any further business by reason of its non-compliance with the laws of the state; and Mix, an agent of the company, under an employment for a term of years, sought compensation for the balance of his time. It was denied him, on the ground that the injunction was a dissolution of the contract by the sovereign power of the state, rendering performance on either side impossible. The agent could not perform nor tender performance; to have done so, the court said, would have been a criminal contempt, and possibly a misdemeanor; and that this result must . be deemed an unexpressed condition of their agreement. Here the corporation was dissolved by the voluntary act of the stockholders. The petition was filed by the requisite member, and the prayer was then concurred in by all the others. Wliat might be the effect on such contracts, where at the suit of the state on a proceeding in quo warranto, a corporation is dissolved for some offense against the laws of the state, need not now be determined. Here, as we have said, the dissolution was a voluntary one by the act of the stockholders. They would have violated no law by continuing their business; and the liability of the corporation had been fixed by the act of discharging the plaintiff before it ceased to be a corporation.

Judgment affirmed.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    State of Ohio v. Kelly.

      Adulteration of food and drugs — Defense of ignorance by vendor— Act of March SO, 1884 {81 Ohio Laws, 6y).

    1. An aflicl avit to charge a violation of the act of March 20, 1884 (sec. 8805, Giauque’s Revised Statutes), “to provide against the adulteration of food and drugs,” need not charge that an adulterated article of food is sold to be used as human food.
    2. In a prosecution under said act it is not a defense that the accused is ignorant of the adulteration of the article which he sells or offers for sale.
    (Decided February 25, 1896.)
    On exceptions of the prosecuting attorney to the decisions of the common pleas court of Franklin county.
    Dennis Kelly was tried and convicted in a justice’s court of Franklin county, for an alleged violation of the act of March 20, 1884, to provide against the adulteration of food and drugs. Kelly having been adjudged to pay a fine of $100, filed his petition in error in the common pleas court where the judgment was reversed, for the following reasons:
    1. “The affidavit upon which said action was predicated is defective in this, that it fails to allege that said article of food so sold by the defendant below, was sold to the purchaser thereof to be used as human food.”
    2. “That the justice erred in refusing to give to the jury the following instruction requested by the defendant: ‘While it is not necessary to charge knowledge in the affidavit, want of knowledge and absence of intent is a valid defense. You will carefully weigh the evidence of all the witnesses, and if the evidence discloses that the defendant bought the molasses, he is here charged with selling, for pure New Orleans molasses and honestly believed it tp be such, that still believing it to be pure, he sold it as such without intent to deceive the purchaser thereof as to its true character, you must acquit the prisoner.’ ”
    The substantial part of the affidavit is that Kelly “did unlawfully offer for sale and sell to one D. J. Minton, a quantity, to wit, a package of a certain article of human food, namely, New Orleans molasses, that then and there said food was adulterated by having mixed therewith glucose, whereby the quality, strength and purity thereof was lowered and depreciated; that then and there said package of food was not labeled as a mixture or compound, nor labeled with the name and per cent, of each ingredient therein.”

      Joseph H. Dyer, prosecuting attorney, Charles Case, W. T. Clark and S. C. Jones, for plaintiff in error.
    The common pleas court reversed the judgment of the lower court upon the sole ground that the affidavit upon which the prosecution was based, was fatally defective in the absence of an averment that the article was sold for and to be used as human food. We do not take this view of the law of the case. Goodrich v. People, 19 N. Y., 574.
    That the sale was for any other purpose or for some purpose, so as to take it out of the operation of the statute, is, as it appears to us, like insanity, alibi or in a case for assault that the party acted in self-defense, purely a matter of defense. Bond’s case, 23 Ohio St., 349; Brotherton’s case, 75 N. Y., 162-3.
    This construction of the statute is but just to the state and no hardship to the accused, as it only calls upon him for proof of facts to rebut what is fairly presumable from the sale and of which he may reasonably be supposed to have the best knowledge; and it also leaves open the door to Legitimate enforcement of the law.
    The following is the language of the statute, in part: “That no person shall within this state manufacture for sale, offer for sale, or sell any drug or article of food whicliis adulterated within the meaning of this act.” The sale of any article of (and not for) food, is the language of the statute. 81 Ohio Law, 67.
    The rule in criminal pleading is universal, that the state is not required to aver in its information a matter which is not contained in the statute, nor prove a fact which it is not required to aver; and, while the defendant is entitled to a substantial description of his offense, this is complied with very generally when the offense is averred in the language of the statute. Poage v. The State, 3 Ohio St., 230; Lougee v. The State, 11 Ohio, 69; Davis v. The State, 32 Ohio St., 24; Altschul v. The State, 8 C. C. Rep., 215; U. S. v. Simmons, 96 U. S., 360; U. S. v. Gooding, 12 Wheat., 460. In this case the averment that the article sold was an article of human food, adulterated (in the language of the statute without any qualifications as for what purpose or use), ought to be regarded as sufficiently implying that it was for such use, and thus throw upon the defendant no hardship, but the simple burden of showing that he was not dealing in the article for such use or purpose, as “The means of such knowledge are thoroughly within his own cognizance and not that of the state.” 8 C. C. Rep., 216; 1 Greenleaf on Evidence, section 79 and cases cited.

      As a rule for regulating the time and mode of producing evidence (not, it will be remembered, for the purpose of adding any presumption to affect the merits), it is held that, when a fact is peculiarly within the knowledge of the party, the burden is on him to prove such fact, whether the proposition is affirmative or negative. Apoth. Co. v. Bentley, R. & M., 159; Great West. R. R. v. Bacon, 30 Ill., 347 State v. McGlynn, 34 N. H., 422; State v. Keggon, 55 N. H., 19; Toler v. State, 16 Ohio St., 583; State v. Josey, 64 N. C., 56; Huggins v. Ward, 21 W. R., 914; 3 F. and F., 109; Commonwealth v. Garber, 132 Mass., 12; State v. Marshall, 64 N. H. , 551.
    It is not required that the rule of pleadings should furnish a shield from punishment. There is here such a description of an offense that the defendant will know what he is to answer; that, when tried the jury will be warranted in finding a verdict, and, if found guilty, the court will not be misled in inflicting the punishment. State v. Follett, 6 N. H., 53.
    This form of affidavit has been long in use in states where these food laws have been enforced. The statutes of the several states are very similarly constructed.
    Substance of affidavits set out in Marshall’s case, 64 N. H., 551; Evans’ case, 132 Mass., 11; Nichols’ case, 10 Allen, 199; Farren’s case. 9 Allen, 489; Addington’s case, 77 Mo., 110; Smith’s case, 10 R. I. , 258; Kibler’s case, 106 N. Y., 321.
    Brief of W. T. Glarh.

    But that a guilty intent is not necessary in all cases is shown by the fact that in a large class of cases every day becoming more important — that of negligence — the nature of the offense excludes intention, either good or evil. The wrong in the first class of cases consists in intending evil; the wrong-in the second class from not intending at all. A distinct class of eases have .come up, in which the unlawful act is done intentionally, but in ignorance that it is unlawful. This ignorance is of two kinds: First, ignorance of law; and, second, ignorance of fact. That ignorance of law. is not a defense is generally conceded. U. S. v. Anthony, 11 Blachf., 200; 122 Mass., 40 ; 9 Pa. St., 312.
    Ignorance of fact, however, presents questions far more intricate, and, as to this defense, we may lay down the following propositions:

      First — When to an offense knowledge of certain facts is essential, then ignorance of these facts is a defense.

      Seconds — When a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact is no defense. Greenleaf on Evidence, 3d vol., section 21; Stevens’ Digest of Criminal Law, 28.
    It is easy to see that to require an affirmative proof on the part of the state, that the accused had actual knowledge of the adulteration, would put an end to many meritorious prosecutions. The cases even warrant the holding that the accused must know at his peril, and that such doctrine is necessary to protect the public. Barnes v. The State, 19 Conn., 397; Commonwealth v. Nichols, 10 Allen, 199; Commonwealth v. Boynton, 2 Allen, 16; State v. Smith, 10 R. I., 258; State v. Hartfield, 24 Wis., 60; Commonwealth v. Hallett, 103 Mass., 452; Regina v. Woodruff, 15 M. & W., 404; 11 Mass., 264.
    Analogous cases have arisen under statute making it indictable to abduct, seduce or violate girls under a specified age Here, also, it is no defense that the defendant mistook the girl’s age. R. v. Rollins, 1 C. & R., 456; State v. Ruhl, 8 Iowa, 447; State v. Newton, 44 Iowa, 45; Beckham v. Nackc, 56 Mo., 546.
    In other lines of prosecution, under statutes making acts indictable irrespective of intent,-similar conclusions have been reached. Hudson v. McRae, 4 B. & S., 585 ; People v. Reel, 47 Barber, 235; Commonwealth v. Vialle, 2 Allen, 512; 48 Ala., 199; Commonwealth v. Raymond, 97 Mass., 567. Nor to an indictment for carrying an illegal number of passengers, that the defense did not know that there was an excess. State v. Balt. Steam. Co., 13 Md., 181; Duncan v. State, 7 Hump., 148. Nor to an indictment for selling naphtha, that the defendant did not know that the oil was naphtha. Commonwealth v. Wentworth, 118 Mass., 441. Nor to an indictment for illegally usurping an office, that the defendant honestly believed that he was honestly elected to the office. State v. Hallett, 8 Ala., 159; McGuire v. State, 7 Humph., 54; State v. Hart, 6 Jones, N. C., 389. With these rulings may be elassed the well-known common law principle that it is no defense to an indictment for a libel that the defendant was ignorant of the contents of the libel. Curtiss v. Mussey, 6 Gray, 261; People v. Wilson, 64 Ill., 195. Or that his motives were scientific or philanthropic. R. v. Hicklin, L. R., 3 Q. B., 360.
    The above proposition is supported by Gardner v. The People, 62 N. Y., 299; People v. Jones, 54 Barb,, N.Y., 311; People v. Brooke, 1 Denman, 457; Regina v. Sleep, 8 Cox C. C., 41; U. S. v. Conner, 3 McLean U. S., 575; Rex v. Sainsbury, 4 T. R., 451; Rider v. Wood, 2 El. & E., 338; 4 T.& R., 257; R. v. Jones, Stra., 1146; R. v. Woodfall, 5 Burr., 2667; 5 H. & N., 84; 14 C. & B., 388; Regina v. Thomas, 32 L. J. M. C., 25; State v. Halstead, 10 Vroom., 413; Commonwealth v. Wentworth, 118 Mass., 441; Harrigan v. Newell, 110 Mass., 470 ; 97 Mass., 567; May Criminal Law, section 5.
    In the British Tribunal, as long ago as 1844, this question arose in the case of the Crown v. Robbins, under a statute punishing the unlawful taking of an unmarried female, under the age of sixteen years of age, out of the possession or against the will of the person having lawful care or charge of her. I. C. & R., 452; case of Regina v. Olifer, 12 Cox, 28; case of Regina v. Brett, 12 H., 231. Inallof which cases it was held by the presiding judges that the ignorance of the fact that the girl was under the specified age was no’ defense; and at last, in 1875, in the case of Regina v. Prince, reported in L. & R., 2 C. & C., report 151, fifteen out of sixteen judges affirmed the same doctrine. In the case of Plumbley v. Commonwealth, decided December 10, 1894, by the Supreme Court of the United States, Judge Harlan presiding, in speaking of a statute similar in its terms, says that the act forbids the practice of selling adulterated food, and seeks to suppress fraud and promote fair dealing.
    Ignorance or mistake of facts will, as a rule, exempt one from criminal responsibility, except—

      {a) Where the intention with which he acts is unlawful;
    (b) Where the ignorance or mistake is voluntary, or the result of negligence;
    (c) Where a crime is so defined by statute that some particular independent fact must coexist, and it was the intention of the legislature that one doing- the forbidden act should do it at his peril. In such case ignorance of the existence of such fact is no excuse. Examples of this are in the cases of illegal sales of adulterated food or liquor, or intoxicating liquor, most of the courts holding that it is no defense for the seller to say that he did not know of the adulteration or intoxicating propertiesof the food or liquor. Com. v. Boynton, 2 Allen, Mass., 160; Com. v. Waite, 11 Allen, Mass., 264; Com. v. Goodman, 97 Mass., 117; Com. v. Smith, 103 Mass., 444; People v. Ziegler, 6 Parker, Crim. R. (N. Y.), 355; State v. Smith, 10 R. I., 258; People v. Kibler, 103 N. Y., 321; 12 N. E. Rep., 795; King v. State, 16 Miss., 502; 6 South Rep., 188; People v. Eddy (Sup.), 12 N. Y. Supp., 628; Com. v. O'Kean, 152 Mass., 584; 26 N. E. Rep., 97.

      Thomas Ewing Steele and T. E. Poioell, for defendant in error.
    Brief of Thomas Ewing Steele.

    In a criminal prosecution under the act of March 20, 1884, 81 O. L., 67, and kindred sections, the defendant may set up in defense and prove abscence of knowledge and presence of good faith and an honest belief on his part, not superinduced by his own fraud or negligence, that the article sold was unadulterated. Anderson v. State, 7 Ohio, Pt. 2, 250; Birney's case, 8 Ohio, 230; Miller & Gibson v. State, 3 Ohio St., 475; Aultfather v. State, 4 Ohio St., 467; Crabtree v. State, 30 Ohio St., 382; Farrell v. State, 32 Ohio St., 456. It cannot be inferred that an indictment which simply follows the language of the statute is sufficient. Mann v. State, 47 Ohio St., 562; Hager v. State, 35 Ohio St., 268. Nor can merit be found in the claim that the omission of scienter from the statute, allows a man to be convicted without according him his common law right to plead ignorantia facti. Bishop's New

      Grim. Law, section 2916. In some of these pure food statutes, the word “knowledge” vestibules a definition of the offense, and in others it does not. An analysis of the various statutes will show that the use or omission of the scienter had been entirely arbitrary and inadvertent.
    Section 7091, Revised Statutes, expressly forbids the adulteration of any domestic wines, by mixing therein any drugs, chemicals^ whisky or any liquors, by any person “knowing the same to be adulterated.”
    A review of these statutes will disclose that the word “knowingly” has been inserted or omitted by the merest chance or accident.
    We therefore conclude that the question as to whether the plaintiff in error’s good faith and ignorance of the fact were material, cannot be determined by a mere inspection of the statute under which he was convicted.
    So, too, we are not impressed with the analogy between the case at bar and those decisions where a man has been held guilty of a higher grade of crime than he may have intended to commit. A man guilty of larceny will hardly escape the penitentiary by claiming not to have known the true value of the stolen goods, nor could one guilty of assault upon a female child, plead for a lighter penalty on the ground that he misjudged her age; but one lawfully engaged in the liquor traffic, may plead as a defense to an indictment for selling to a minor, that he did not know the lad’s minority, but honestly believed him to be sui juris. Miller & Gibson v. The State, 3 O. S., 475.
    The distinction is obvious and based on a familiar principle^ that the crucical test must always be whether the “mind is criminal.”

      One lawfully engaged in the drug or grocery business, indicted in a local option township for selling intoxicating liquors, might show in good faith he believed the liquors sold to be non-intoxicating. (32 O. S., 456); why, therefore, may not a merchant lawfully engaged in the wholesale grocery business, if arraigned for selling adulterated molasses, in like manner establish that he honestly believed the same to be unadulterated ?
    It may be true that some courts, notably in Massachusetts, have gone far to maintain the position urged by the state, but such decisions are in sharp conflict with the adjudication of this court. Compare Commonwealth v. Boynton, 2d Allen, 160, with Farrell v. State, 32 O. S., 456, and Commonwealth v. Evans, 98 Mass., 6, with Miller & Gibson v. State, 3 O. S., 475.
    We insist (1) that it is the settled doctrine in Ohio that absence of knowledge and intention, coupled with presence of good faith, is a competent defense to a prosecution for any misdemeanor; (2) that the misdemeanors created by the act of March, 1884, do not so differentiate from any others as to qualify this doctrine; and (3) that there has been no discovery in the science of the law, nor has any public exigency arisen to require this court to reverse its unbroken line of decisions upon this point. It is settled law in Ohio that want of knowledge is a proper defense. Birney v. State, 8 Ohio, part 1, 230; Miller & Gibson v. State, 3 Ohio St., 475; Aultfather v. State, 4 Ohio St., 467; Farrell v. State, 32 Ohio St., 456.
    These decisions all construe statutes containing no scienter, and they have been faithfully followed by inferior courts throughout the state, the trial judge among the rest.

      A review of the authorities will sufficiently show that this court has clung to the fundamental principles of common law. People v. Fulle, 12 Abb., N. C., 196; Fowler v. Padgett, 7 T. R., 509; Taylor v. Newman, 4 B. & S., 89; 32 L. J. (M. C.), 186; Regina v. Sleep, 8 Cox., Cr. C.
    The same doctrine has been broadly laid down by Justice Hill in the earlier case of Regina v. Cohen, 8 Cox, Cr. Cases, 41; Myers v. State, 1 Conn., 503; Regina v. Wagstaff, 10 Cox, 530; Stern v. State, 52 Ga., 229; Commonwealth v. Power, 41 Am. Dec., 465; Regina v. Hibbard, 11 Cox, 246 State v. Smith, 18 N. H., 91; State v. Holmes, 17 Mo., 379; Regina v. Reed, 1 C. & M., 306.
    The prevailing doctrine of the common law is found in Regina v. Sleep, and has never, so far as we know, been overruled. Many other eases mig-ht be cited, but they would only be cumulative. The entire subject is thoroughly discussed by Mr. Lawson in his volume on Criminal Defenses, page 465 et seq. Bishop’s New Crim. Law, section 303a, and extract from note thereto, par. 19-22, inclusive.
    The affidavit is faulty in failing to charge that the molasses was sold for and to be used as human food.
    The common pleas court discharged the accused because the affidavit did not state any offense under the laws of Ohio; it did not allege that the said molasses was sold for and to be used as human food.
    It is clear that the act of March, 1884, was enacted solely to protect the people of the state against the use of impure and adulterated food, and that no one would violate the law by selling any food, except as such. Bishop’s New Crim. Law, 491. Sec. 2, act March, 1884, 81 O. L., 67.
    This proposition is indisputable. The question remains whether the state must aver whether the article was sold for food, or, -averring the naked sale, compel the defendant to set up in defense its sale for some other purpose. People v. Parker, 38 N. Y., 85; Goodrich v. People, 19 N. Y., 579; Schmidt v. State, 78 Indiana, p. 41.

      Rex v. Dixon, 3 Maul and Sel., 11 (affirmed 4 Camp., 12), is not in conflict with the doctrine we are contending for. Queen v. Crawley, 3 Fost and F., 109.
    We are not insisting that the affidavit should negative the claim that the sample was sold for analysis; that contention would receive no encouragement under the ruling in Billigheimer v. The State, 32 Ohio St., 435. We do claim, however, that no case can be found where a man was convicted for selling any adulterated article of food unless it was sold for and to be used as human food.
    The fact that the article was sold as food is an essential part of the charge; it is a part of the substance.
   Shauck, J.

Thefirst section of the act of March 20,1884 (section 8805, 1, Revised Statutes), provides “that no person shall within this state manufacture for sale, offer for sale, or sell any drug or article of food which is adulterated, within the meaning of this act.” Other provisions of the statute are devoted to definition of the terms used in the first section, and to prescribing penalties for the violation of the act. It is not doubted that molasses to which glucose has been added is an article of adulterated food ■ within the meaning of the statute.

The act does not in terms require, to constitute an offense against its provisions, that the adulterated article of food-shall be sold to be used by the purchaser as human food. Nor does it in terms require, as an element of the offense, knowledge of the fact that the article is adulterated, or provide that a 'want of such knowledge, shall constitute a defense. Both conclusions stated in. the decision of the court of common pleas, are, therefore, wrong unless they are justifiable inferences from the purpose and indicated policy of the act.

The act is not a provision for the punishment of those who sell adulterated food, or drugs, because of any supposed turpitude prompting such sales or indicated by them. Its purpose is indicated by its title. It is “an act to provide against the adulteration of food and drugs.” It is a plan devised by the general assembly to protect the public against the hurtful consequences of the sales of adulterated food and drugs, those consequences being in no degree increased by the vendor’s knowledge, or diminished by his ignorance, .of the adulteration of the articles which he offers for sale. The provisions of the act are appropriate to the purpose indicated by its title. It would have been inconsistent with that purpose to provide for the trial of such immaterial issues as the object of the vendor in making a sale or of the extent of his knowledge touching the quality of the article sold. Those who produce the adulterated articles whose sale is forbidden may live without the state. Purpose and knowledge, except when they are indicated by the character of the forbidden act, are, in most cases, insusceptible of proof. If this statute had imposed upon the state the burden of proving the purpose of the vendor in selling an article of food or his knowledge of its adulteration, it would thereby have defeated its declared purpose. Since it is the duty of courts to so construe doubtful statutes as to give effect to the purpose of the legislature, they cannot in case of a statute whose provisions are unambiguous and whose validity is clear, defeat its purpose by construction.

The correct view of statutes of this general nature is stated by the supreme court of Massachusetts in Commonwealth v. Murphy, 42 N. E. R., .504: “Considering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question in interpreting a criminal statute is whether the intention of the legislature was to make knowledge of the facts an essential element of the offense, or to put upon everyone the burden of finding out whether his contemplated act is prohibited, and of refraining from it if it is. ’ ’

In Commonwealth v. Farren, 9 Allen, 489, in construing a statute which provides that “whoever sells or keeps or offers for sale adulterated milk, or milk to which water or any foreign substance has been added” shall be punished as provided, it was held that it is not necessary either to allege or prove that the accused knew that the milk he offered for sale was adulterated. With respect to a similar statute the same conclusion was reached in State v. Smith, 10 R. I., 258. If knowledge of the adulteration were an element of the offense, it would be incumbent upon the state to establish it; but since it is not, the 'defendant could derive no advantage from any evidence tending to show the absence of such knowledge.

With respect to the absence of the allegation that the adulterated article of food “was sold to be used as human food,” it is sufficient that the statute forbids the sale of such article without any requirement as to the purpose, assuming that it is to be used for that purpose to which it is appropriate. Goodrich v. People, 3 Parker, Crim. R., 622; Davis v. The State, 32 Ohio St., 24.

In the enactment of this statute it was the evident purpose of the general assembly to protect • the public against the harmful consequences of the sales of adulterated food and drugs, and, to the end that its purpose might not be defeated, to 'require the seller at his peril to know that the article which he offers for sale is not adulterated, or to demand of those from whom he purchases indemnity against the penalties that may be imposed upon him because of their concealment of the adulteration of the articles.

Exceptions sustained.


author: Bradbury, J.

text:
    Cincinnati Street Railway Co. v. Wright, Adm’r.

      Bill of exceptions — As to charge to jury — Motion for a new trial— May be taken within what time — Section BS01, Revised Statutes (90 Ohio Laws, £03) — Circumstance to raise presumption as to capacity of youth — Attempted recovery for injuries — Contributory negligence.

    1. Where, during the trial of a civil action, exceptions are taken to a ruling of the court in respect to its charge to the jury, and such ruling is afterwards embodied in a motion for a new trial, which is overruled, the time (section 5301, Revised Statutes, 90 Ohio Laws, 203), within which a bill of exceptions may be taken, setting forth such action of the court, should be computed from the date when the motion for a new trial was overruled.
    2. In the absence of evidence on the subject, a child, or youth, of any given age should be held to that degree of intelligence common to persons of his age. The circumstance that a boy of about the age of fourteen years is accustomed to perform labor, earn wages, and go to and from his work along the streets of a populous city unattended raises no presumption that he is more intelligent, or has greater capacity to discern and avoid danger, not connected with his occupation, .than is common to other boys of the same age.
    3. Conti’ibutory negligence, to defeat a recovery for injuries received on account of the negligence of another, should consist of some act or omission of the party himself, or of some third person to whom such party bore the relation of master or superior. One who, uninvited or without the knowledge of the driver of a private vehicle, gets upon such vehicle for the purpose of riding, and rides thereon, does not thereby assume the relation of master or superior towards such driver ; and therefore he is not chargeable with the negligence of the driver in driving or managing such vehicle.
    (Decided February 25, 1896.)
    Error to the Circuit Court of Hamilton county.
    This action was brought in the superior court of Cincinnati by the defendant in error to recover damages sustained by reason of the death of his intéstate, which death, he alleged, was caused by the negligence of plaintiff in error. The case was tried to a jury and resulted in a verdict and judgment in favor of plaintiff in error, defendant below. Proceedings in error were instituted in the circuit court of Hamilton county, where the judgment was reversed, and a new trial ordered in the superior court, on the ground that the latter court had erred in giving to the jury certain instructions requested by the defendant below, and in refusing to instruct the jury as requested by the plaintiff below. Whereupon the cause was brought to this court by the street railway company to obtain a reversal of the judgment of the circuit court. The facts necessary to an understanding- of the questions decided_will be found in the opinion of the court. .
    Paxton, Warrington <& Boutet wx^Kittrodge <& Wilby, for plaintiff in error.
    Two general questions are thus presented:
    1. Was the bill of exceptions filed within the statutory time fixed for bringing such errors as these upon the record ?
    2. Was any material error really committed?
    No exception was properly made part of the .record.
    The question of time is of a two-fold character. It is whether the statutory period of fifty days •shall be counted from the time when the general and special charges were actually given and the special charges refused, or whether it shall be counted from the time of the overruling of the motion for a new trial. The determination of this just depend upon whether a motion for a new trial is or is not necessary to preserve the right to review a charge of a court. As it seems to us, the law is settled that a motion is not necessary for such a purpose. Earp, Supervisor etc. v. Railroad Co. 12 Ohio St., 621; Spangler v. Brown, 26 Ohio St., 389; Phelps v. Shroder, 26 Ohio St., 556; Lockwood v. Krum, 34 Ohio St., 11; Werk v. Voss, 6 W. L. B., 271.
    This suit was commenced December 26, 1892. The petition in error was filed in the circuit court, April 26, 1894. . The proceeding in error then, is governed by Revised Statutes, sections 5298 and 5302, as amended March 22, 1892 (89 O. L., 124) and by section 5301 as amended April 19, 1893 (90 O.»L.,’203). The first of these amendments is not, and the second' is, made expressly applicable topending cases. Young v. Shallenberger, 53 Ohio St., 291; Finley v. Whitley, 46 Ohio St., 524.
    No error was committed — certainly no prejudicial error.
    The circuit court reversed the decision of the superior courtfor “refusing to give the second and third special charges asked for by-plaintiff in error (plaintiff below), and in giving special charge No. 4 asked for by defendant in error” (now plaintiff in error). Railway Co. v. Volk, 151 U. S., 73.
    Our contention has always been that inasmuch as the driver of the dray, Albert Kees, confessedly had no knowledge of the presence of the boys or of Joseph Wright upon his dray, but was entirely ignorant of that fact — Wright being in fact a trespasser so far as the driver was concerned — the driver owed no duty to Joseph Wright, and could not be guilty of.any negligence in respect to him. But we contend that Joseph Wright himself was guilty of direct negligence, if he placed himself in a dangerous position upon the dray without the knowledge of the driver. Transfer Co. v. Kelly, 36 Ohio St., 90; Street Railway Co. v. Eadie, 43 Ohio St., 91; Railroad Company v. Terry, 8 Ohio St., 570.
    The circuit court supposed that the fourth charge was in conflict with the decision of this court in Rolling Mill Co. v. Corrigan, 46 Ohio St., 283.
    We submit in addition to this that the position which deceased occupied upon the dray was so obviously hazardous as to raise a presumption of contributory negligence, so as to impose upon his representatives the duty affirmatively to remove the presumption or otherwise fail. Railroad Co. v. Whiteacre, 35 Ohio St., 627; Robinson & Weaver v. Garry, 28 Ohio St., 241.
    This latter view is fortified by the undisputed fact in the case, before shown, that both his parents and his six brothers and sisters were largely “dependent upon him for support.” It is impossible rationally to suppose that such a person did not fully understand the peril of his situation.

      John W. Wolfe and Thomas L. Michie, for defendant in error.
    As to the first point argued by the plaintiff in error: If it is true that the bill of exceptions w;as not filed in the circuit court within the statutory time, then the plaintiff in error should have moved the circuit court to strike it from the files. The bill of exceptions show that the evidence at the trial was taken by an- official stenographer. The defendant in error was unable to advance the money required for a full transcript of all the evidence at the trial, and after considerable- difficulty counsel on both sides agreed upon this short form of the bill of exceptions. Sections 5301, 5302, Revised Statutes.
    Plaintiff in error insists that although unsigned by the judge, the bill of exceptions should have been filed within fifty days for official identification. We leave such a claim where it stands without comment.
    As to the second point advanced by plaintiff in error, that there was “no material error really committed,” we ask the honorable court to read .the special charges Nos. 2 and 3, requested by the defendant in error, and refused by the trial court.
    The issue was fairly raised, as shown by the bill of exceptions, of what the evidence introduced at the trial tended to prove; whether, if the jury should believe that the truck was recklessly driven against the street car, the negligence of the driver could be imputed to the boy who was riding on the truck; and the issue was also presented to the jury whether the plaintiff in error would be liable, if the negligence of the driver of the truck was a joint and concurring proximate cause of the death of the intestate. Thorogood v. Bryan, 8 C. B., 115; Beach on Contributory Negligence, second edition, sections 105, 106, 107, 108, 109, 110, 111 and 112; Shearman and Redfield on Negligence, fourth edition, section 66; Little v. Hackett, 116 U. S., 366; Transfer Co. v. Kelly, 36 Ohio St., 86; Street Railway Co. v. Eadie, 43 Ohio St., 91.
    It makes no difference, then, whether the injured party was a passenger conveyed by a common carrier or riding in a private vehicle-; and whether the intestate was on this truck with or without the permission of its driver, could not affect the duty of the plaintiff in error to exercise due care in operating its car at a public street crossing. 34 W. L. B., 503.
    The fourth special charge given by the trial court at the request of the plaintiff in error, seems utterly at variance with the law as laid down by this honorable court in Rolling Mill v. Corrigan, 46 Ohio St., 283.
   Bradbury, J.

The circuit court reversed the judgment of the superior court upon the ground that the latter court erred in instructing the jury as requested by the street railway company, and in refusing to give certain instructions asked tobe given by the administrator, plaintiff in that court. The plaintiff in error contends that the bill of exceptions taken to the rulings of the superior court was not perfected within the time prescribed by statute, and therefore not being warranted by law, was inoperative, and gave no jurisdiction to the circuit court to hear the questions upon which it reversed the judgement of the superior court. It is conceded that this objection was not made in the circuit court, and for that reason contention is made that this court should not listen to it now. The general rule, doubtless, is for this court to disregard questions not made in the court whose judgment is under review.

However, if the court, whose judgment is under consideration, was without jurisdiction over the subject matter in contention, the rule does not apply, and that question may be raised here, although not brought to the attention of the lower court. Doubtless an orderly course of procedure, and thorough fairness towards that court, would require the question of its jurisdiction to be made there in the first instance, but a failure to do so is not fatal to the right to contest the question here.

The exceptions to the rulings of the trial court in giving and refusing certain special instructions requested by the parties were made on the 8th day of February, 1894, the day that the jury were instructed. A motion for a new trial was filed February 10, 1894, including, among other grounds of error, the action of the court in giving and refusing to give to the jury such special requests ¡which motion was overruled and a judgment entered on the verdict on March 3, 1894. On April 17 following, a period of forty-five days after the motion for a new trial had been overruled, and sixty-eight days from the day the exceptions were noted, the plaintiff below presented the bill of exceptions to the trial court for allowance, and the court then extended the time therefor ten days beyond the time allowed by statute, which was then fifty days, and on April 24, 1894, within the period of the ten days extension, the bill of exceptions was signed, sealed, allowed and ordered to be made a part of the record in the cause. This statement of the dates upon, and the order in, which the several material events occurred shows that the bill of exceptions was presented to the trial judge for an extension of time for signing it, on the forty-fifth day from the overruling of the motion for a new trial, and the sixty-eighth from the day the charge was made and exceptions thereto noted; and it was signed by the judge seven days later.

The statute by its own force allows fifty days for perfecting a bill of exceptions, and, provided it is presented to the trial judge at least five days before the fifty days have expired, he may allow ten days more for the purpose of signing the same. Pugh v. State ex rel., 51 Ohio St., 116. It is therefore apparent that the validity of the bill of exceptions. in this case depends upon the event from which the computation of time shall be made. If, from the overruling of the motion for a new trial, it is valid, because it was presented to the trial judge on the forty-fifth day thereafter, that being at least five days before the expiration of the fifty days; the judge then extended for ten days the period for signing the same, which g’ave for that purpose a total of sixty days. On the seventh day after the extension was granted, or the fifty-second day from that on which the motion for a new trial was overruled, the bill of exceptions was signed by him.

If, however, the computation be made from the day on which the charge w;as given and the exceptions to it noted, then the application for an extension of time and the subsequent signing of the bill of exceptions were both too late, the former having been made sixty-eight days after, and the latter act occurring seventy-five days after the exceptions had been noted.

This court held in Earp, Supervisor, v. R. R. Co., 12 Ohio St., 621, that a party who, on the trial of action, takes exceptions to the decision of the court upon the admission of testimony, and to the charges of the court to the jury, and has those exceptions reduced to writing and signed by the judge, may allege error in a petition filed in the district court without filing a motion for a new trial in the trial court upon those grounds. Doubtless the law is the same now; for in this respect the existing statute is similar to the one then in force. Counsel contend that because a motion for a new trial is not necessary to preserve the right to review a charge of the court, the time within which a bill of exceptions should be taken for that purpose begins to run from the day the charge was given. This contention would be sound in a case where a motion for a new trial was not made, and the party excepting choose to rely upon the exception taken during the course of the trial. The choice, however, is with him. By the express terms of section 5301, Revised Statutes, he may include these grounds of error in the motion for a new trial. The language of section referring to this matter is, where “the exception is to the decision of the court on a motion * " * for a new trial for misdirection by the court to the jury, * * * the party excepting must reduce his exceptions to writing and present them to- the trial judge or judges for allowance within fifty days after the overruling of the motion for a new trial. The language of this section,- we think', fully authorizes a party excepting to a charge of the court to include the alleged error in the motion for a new trial; it is just and reasonable to afford by that means an opportunity to the trial-judge to review his rulings, which often times must be made without access to authorities or time for deliberation. And where this ground of error is included in the motion for a new trial, the time within which the bill of exceptions must be taken runs from the overruling of such motion.

We are not aware of any holding of this court that can be construed as militating against these views. It follows, therefore,- that the bill of exceptions was allowed and filed within the time allowed by law.

The bill of exceptions discloses that the intestate of the plaintiff below was a boy about fourteen years old, who had steady ein.ploym.ent in a type foundry in Cincinnati and was accustomed to go to and from his work unattended; that the deceased and two or three other boys on the evening of the accident, just at dark, were riding along one of the public streets of Cincinnati on a four wheeled dray, without the knowledge of the driver; that while the boys were so riding, a street car of the defendant below, collided with the dray and thereby caused the death of the intestate. There was evidence tending to prove, and other evidence tending to rebut ■ negligence in running the street car, and in the driver of the dray, contributing to the collision. The record, however, discloses no evidence of any act whatever done by the deceased that contributed to produce the collision. Nor was there any evidence whatever of negligence on his part that contributed to his injury, unless the simple fact that he was riding in a private vehicle without the knowledge of the driver, along a • public street whereon the electric street railway was operated, and was killed by a collision between such vehicle and a street ear, affords grounds from which contributory negligence might be inferred againsthim.

After the evidence had been introduced the defendant below requested the court to give, and the court did give to the jury, over the objections of plaintiff below, the following special instructions:

“IV. If you find that Joseph Wright was fourteen years old and upwards at the time of the accident, and was entrusted with the performance of work so that he was earning ordinary wages of such a boy, and was accustomed to going without guidance or assistance of his parents to and from bis place of business or employment, you may then find that he was chargeable with the responsibility of such age and discretion, and to the observance and performance of ordinary acts of care ; that is to say, he was bound to know the danger if there were danger, in riding upon the dray in the way described by the evidence, and especially the danger, if there were danger, that would be encountered in case of collision between the dray and any other vehicle or car when riding in sucha position; and if you find that Joseph Wright at the time of the accident was sitting or riding upon the dray in question in a hazardous or dangerous position, then I charge you it will be your duty to consider and determine whether he was guilty of contributory negligence; and if you find he was, then the plaintiff cannot recover. ’

Conceding that the danger to be apprehended from the act of riding upon a dray along a public street of a populous city upon which an electric railway was being operated was so great, that from such act alone negligence might be inferred against an adult person who should do so in the manner and at the time that the intestate did; nevertheless, the degree of responsibility imposed by the foregoing proposition upon intestate was too high. We know of no rule of law that imposes upon a boy of fourteen who may go out to work and earn wages; and go about the streets of a city unattended, a higher degree of care concerning his safety, than a boy of the same age and equal intelligence who, unattended, may go to and from school, or roam about the streets unemployed. The record does not show any attempt to prove that the intestate was unusually bright and intelligent. There is no presumption that a boy who goes out to work for wages can discern danger more readily than one who does not. He may have been sent out to earn wages for the very reason that he was dull at his books, or from his own necessities or those of his parents. The subject is purely speculative. Doubtless certain occupations tend to quicken the perceptions and ripen the judgment. "Whether any particular occupation has accomplished this end for a boy in any case is a question of fact for the determination of the jury, and not one of law to be decided by the court. The intestate in the abseñce of proof that he was specially intelligent, was bound to no higher care respecting his personal safety than other boys of his age were accustomed to exercise under similar circumstances. Rolling Mill Co. v. Corrigan, 46 Ohio St., 283.

3: The plaintiff below requested the trial court to give the following proposition to the jury:

“II. If the jury believe from the evidence in this case that the plaintiff’s intestate, Joseph Wright, was at the time he lost his life, riding in the rear part of a wagon or dray, driven by one Albert 'Kees, and that the said intestate, Joseph Wright, had nothing to do in any way with the driving, control, or management of said wagon or dray by said Kees, that then the negligence of said Kees, if any has been proved, in driving said vehicle across Elm street at the said intersection of Fifteenth’street, .cannot be imputed to the said intestate so as to charge him with contributing to his own injury.
“III. The jury are instructed that if they believe from the evidence in this case that the plaintiff’s intestate, Joseph Wright, while lawfully riding on a wagon or dray driven by Albert Kees across the intersection was on his (Joseph Wright’s) part, killed by a collision between the said wagon or dray on which, he was then riding, and one of, the defendant’s street cars, and that such collision was caused by the negligence of the defendant, its agents or servants, in running its street cars at and across the public.crossing at the intersection of Elm and Fifteenth streets, then the defendant is liable to the plaintiff in this action. •
“If the jury shouldfind that such collision, under the circumstances stated above, killed the plaintiff’s intestate, Joseph Wright, without any negligence on the.part of the said intestate, and was caused by the joint and concurring negligence of the • defendant, its agents or servants in charge of the street car and of the driver of the wagon or dray on which the said intestate was then riding, that then the defendant, The Cincinnati Street- Railway Company, is liable to the plaintiff in this action. ”

The court declined to submit this proposition to the jury, which ruling the circuit court held to be erroneous.

In Thorogood v. Bryan, 8 C.B., 115, cited in Catlin v. Hill, 8 Manning, Granger & Scott, 129, the court held that one who took passage in an omnibus and was injured by the concurring negligence of the driver of the vehicle in which he was riding and of the driver of another omnibus, could not recover on the ground that, by selecting the omnibus in which he made his journey, he became identified with it. Coltman, J., saying: “The passenger is so far identified with the carriage in which he is traveling that want of 'care on the part of the driver will be a defense” for an injury caused to such passrenge by the carelessness of the driver of another carriage. This case was the progenitor of this branch of the doctrine of imputed negligence. It seems impossible to maintain the doctrine, as announced by that case, except, by assuming that the party injured, by selecting the vehicle in which he was riding*, made its driver his servant. This notion was expressly repudiated in 1887 by the English Court of Appeals and the case of Thorogood v. Bryan overruled in Bernina, L. R., 12 Prob. Div-., 58; Lord Esher saying, lb., 68: “In truth the judgments in Thorogood v. Bryan all amount to saying that by what the plaintiff did (taking passage in an omnibus), he made the driver his agent so as to be liable for his acts, as if he, the plaintiff, had himself done those acts. But if he did make him his agent at all, he must in consistency, not only be by reason of such liability deprived of his remedy against third persons, but must be affirmatively liable to third persons.. In truth, the driver in the ease is not the servant or the agent of the passenger, and has not even any one. of the attributes which are evidence of being even like a servant or agent.”

This later view of the doctrine of imputed negligence has been adopted in this state. Transfer Co. v. Kelly, 36 Ohio St., 86; Street Ry. v. Eadie, 43 Ohio St., 91; Davis v. Guarnieri, 45 Ohio St., 470; Railroad Co. v. Manson, 30 Ohio St., 451; Railroad Co. v. Snyder, 18 Ohio St., 399.

The same view of the question was adopted by the Supreme Court of the United States in Little v. Hackett, 116 U. S., 366; and the doctrine of the case of Thorogood v. Bryan repudiated upon the ground that contributory negligence to defeat a recovery must be that of the party injured or of some one to whom he stood in the relation of master or superior, and that such relation did not exist between the driver of a public hackney coach and one who hired it for driving about a city for recreation and pleasure.

In the course of his opinion, Justice Field says: “That one cannot recover damages for an injury to the commission of which he has directly contributed, is a rule of established law and a principle of common justice. And it matters not whether that contribution consists-in his participation in the direct cause of the injury, or in his omission of duties which, if performed, would have prevented it. If his fault, whether of omission or commission, has been the proximate cause of the injury, he is without remedy against one also in the wrong. It would seem that the converse of this doctrine should be accepted .as sound — that when one has been injured by the wrongful act of another, to which he has in no respect contributed, he should be entitled to compensation in damages from the wrong-doer. And such is the generally received doctrine unless a contributory cause of the injury has been the negligence or fault of some persons towards whom he sustains the relation of superior or master in which case the negligence is imputed to him, though he may may not have personally participated in or had knowledge of it. ” '

This, we think, places the doctrine of contributory negligence upon a sound foundation. In order that it shall operate to defeat a recovery it should be some act or omission of the' party himself or of some one towards whom he stood in the relation of master or superior. 1 Sherman &Redfield onNeg., 66.

The driver of a private vehicle, upon which another may be riding, without the driver’s knowledge, is in no proper sense the servant or agent of the latter. The relation of the person so riding may be that of a trespasser to the owner of the vehicle or even to the driver, but he is in no sense of the term the master or superior of the driver. Nor has the act such character that on account of it he should be denied a remedy for injuries sustained by the negligence of another.

The intestate in this case, even if he was, without the knowledge of the driver, riding upon a wagon or dray along the streets of Cincinnati, did not thereby violate any duty he owed to the street railway company. It was a matter affecting himself on one side and the owner or driver of the vehicle on the other. Whether the latter had some just grounds of complaint or not, did not concern the street railway company. True, it is possible that the driver might have used greater care than he did had he known the intestate was on the vehicle. That, however, is purely speculative, and, therefore, too uncertain to become a predicate for affecting the respective rights of the parties. However, if it should be conceded that the driver would have been more careful if he had known the boy was on the dray, no principle is apparent by which the street railway company could be relieved. The basis of its liability is its own wrongful conduct and in such case we have seen its only way of escaping from the consequences of this wrongful conduct is through some wrongful contributory act or omission of the injured person, himself, or by some one to whom he bore the relation of master or superior; and that relation is not created by the simple act of boarding a private vehicle without the knowledge of the driver.

Judgment affi/nned.


author: Spear J. Shauck, J.,

text:
    Cincinnati Street Ry. Co. v. Snell.

      Injury to person — Introduction of new forms of vehicles and new motive power on street railways — Effect upon law of negligence —Right of foot passenger — Duty of driver of vehicles — Question of contributory negligence.

    1. The introduction of new forms of vehicles, and of new motive power on street railways, has not impaired the right of the foot passengers to safe passage at street crossings. It is the duty of drivers of vehicles, whether wagons, wheels, or cars, to so regulate the speed thereof, and give such warning of approach, at whatever cost of pains and trouble on their part, as that the footman, using ordinary care himself, may, in the absence of unavoidable accident, cross in safety.
    2 When a street railway company operating a double track road discharges a passenger at a street crossing, having reason to know that such passenger, in order to reach his destination, must cross its tracks, it is the duty of such company to reg-ard the rights of the passenger while on the crossing, and to so control the speed of cars on its tracks, and give such warning of their approach, as will reasonably protect the passenger from injury. Omission of such duty is negligence, and a person injured by reason thereof may maintain an action against the company for damages unless prevented by his own negligence contributing to the injury.
    3. A person about to cross the track of a street railway at a street crossing is bound to exercise care proportioned to the danger to be avoided and the consequences which might result from want 'of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only ordinary care which is required, that which might reasonably be expected of persons of ordinary prudence. Ordinary care does not require him to anticipate negligence on the part of those operating the railway. And while he should use his faculties for his own protection, it is not negligence per se for him to omit to look in both directions for the approach of a car. Whether it is or not negligence depends upon the circumstances.
    4. Where the evidence of the plaintiff shows actionable negligence on the part of the company, and the question of contributory negligence of the plaintiff depends upon a variety of circumstances from which different minds may reasonably arrive at different conclusions as to whether there was contributory negligence or not, the question should be submitted to the jury under proper instructions; and it is error in such case for the court to direct a verdict for the defendant.
    5. And where in such case the question as to whether or not the plaintiff exercised his faculties of seeing and hearing before attempting to cross is in issue, and the oral evidence tends to show that he did, while circumstantial evidence tends to disprove that claim, a condition is presented involving such variety of circumstances as makes it proper to submit the question to the jury.
    (Decided February 25, 1896.)
    Error to the Circuit Court of Hamilton county.
    Action below was by Snell against The Cincinnati Street Railway Co. to recover for personal injuries received by being struck by a moving car of the company. In the common pleas, at the conclusion of the plaintiff’s testimony, a motion by the company to direct a verdict in its favor was sustained, and a judgment on the verdict so rendered was entered. This judgment was reversed by the circuit court. The company asks a reversal of that judgment.
    Paxton, Warrington da Boutet and Kittrecbge da Wilby, for plaintiff in error.
    No claim was made by the plaintiff in error, in the court below, and it is not contended here that the court could assume that there was no evidence tending to show negligence on the part of the defendant company. It is, however, insisted and we now urge that it is disclosed by the testimony presented that Charles B. Snell crossed the track immediately behind one ear and walked into another, omitting every precaution ^yhich persons of ordinary prudence would exercise, and without the existence of any circumstance to excuse his conduct.

      The plaintiff himself was wholly responsible for the obstruction to his view of the car approaching on the opposite track. By walking behind the car from which he alighted, he temporarily created an obstruction to his view. He alone is responsible for that obstruction, for the defendant had an absolute right to proceed with its east bound car.
    Let us turn to what the courts have said respecting the duty of a person about to cross tracks where the view is obstructed. Horn v. Railway Co., 54 Fed. Rep., 301; Railway Co. v. Peters, 1 C. C. Rep., 34; The Pennsylvania Co. v. Morel, 40 Ohio St., 338.
    The iron tracks in the street over which he was stepping and toward which he was walking were notice and warning to him of danger. Elliott v. Railway Company, 150 U. S., 245.
    The obvious weight of rapid transit electric street cars and the consequent difficulty of stopping them quickly, necessarily render their operation so dangerous as to require the application of the same rule to persons about to cross or occupy the tracks, as the one which is applied to persons approaching steam railroad crossings over public highways. Hickman v. The Union Depot Railway Co., 47 Mo. App., 65; Smith v. The Citizens' Railway Co., 52 Mo. App., 36; Fritz v. Detroit Citizens’ Street Railway Co., 62 N. W. Rep. 1007; Boerth v. West Side Railroad Co., 87 Wis., 288; Ward v. Rochester Electric Ry. Co., 17 N. Y., Sup., 427; Corson v. Federal Street & Pleasant Valley Ry. Co., 147 Pa. St., 219; State ex rel. v. City of Toledo, 48 Ohio St., 112.

      John W Wolfe and Thomas L. Michie, for defendant in error.

      As to the right of the court to assume the province of a jury in determining the question of contributory negligence as a matter of law, see Railroad Co. v. Picksley, 24 Ohio St., 654; Railway Co. v. Crawford, 24 Ohio St., 631; Ellis & Morton v. Ohio Life Insurance & Trust Co., 4 Ohio St., 647.
    As to what is contributory negligence under the circumstances of this case, we submit the following’ authorities: Railroad Co. v. Robinson (Ill.), 4 L. R. A., 126; Omaha St. R. Co. v. Lochneisen (Neb.), 58 N. W. I., 535.
    Defendant in error had been accustomed to getting off 'at the same place since the plaintiff in error first commenced to operate its electric ears, and he had a right to assume that plaintiff in error would operate its car with due care while passing the car from which he had alighted. Meek v. Penn. R. Co., 38 Ohio St., 652.
    In this ease the court substantially recognizes the doctrine that one of the circumstances by which contributory negligence is to be determined is, what the injured party had the right to expect in the way of due care íd the operation of the car by which he was injured.
    There is a vital difference between the duties which a street car company, occupying a portion of the public hig’hway, owe to the public, especially at crossings in the city, and the duties of a railway company upon its own' right of way. New Jersey Court of Appeals, 22 L. R. A., 378; Driscoll v. Railroad Co., 32 Pac. Rep., 591.
    . We submit that in this case the testimony of the defendant in error as to how he was struck, was strengthened by the long and skillful cross-examination, and by the testimony of other witnesses, making it plain the defendant in error acted as any other reasonably prudent man would have acted und'er the circumstances, and as people in alighting from cars had been accustomed to act. Where electric cars are run in opposite directions on closely parallel tracks, there is no deadlier parallel than the tracks of the trolley railway, and it is such gross and reprehensible negligence that one car should run at rapid speed and without signal by another car which has stopped or slowed up, to let off passengers at a regular crossing, that no reasonable mind would anticipate such negligence. Weizer v. Railway Co., 10 O. C. C. Rep., 14.
    Under the settled law of this state imposing on the defendant the burden of establishing the contributory negligence of the plaintiff, just as the burden of establishing the negligence of the defendant rests on the plaintiff, we claim that a jury alone, under proper instructions of the court, could assume the province of determining the question of contributory negligence of the defendant in error.
   Spear J.

The ground upon which the common pleas directed a verdict was that the plaintiff’s evidence disclosed contributory negligence of such a character as to preclude a recovery. In other words, the holding was that, as matter of law, the plaintiff was guilty of contributory negligence. If the plaintiff’s conduct, as shown by the undisputed facts, left no rational inference but that of negligence, then the ruling was 'right, but if the question of contributory negligence depended upon a variety of circumstances from which different minds might arrive at different conclusions as to whether there was negligence or not, then the ruling was wrong. This follows from the rule given in Ellis & Morton v. Ins. & Trust Co., 4 Ohio St., 627. Applying the doctrine of that case, the motion involved an admission of all the facts which the evidence in any degree tended to prove, and presented only a question of law, whether each fact indispensable to the right of action, and put in issue by the pleadings, had been supported by some evidence. If it had been, no matter how slight the evidence, the motion should have been denied, because it was the right of the plaintiff to have the weight and sufficiency of his evidence passfed upon by the jury. But if he had failed to give evidence tending to establish any fact without which the law would not permit a recovery, he had nothing to submit to the jury, and a question of law only remained. We are aware that this rule is much criticised, and plausible arguments against its reasonableness have been adduced, but it has been followed uniformly, and should be applied until definitely overruled, or changed by legislation.

The plaintiff was himself bound to use ordinary care, such degree of care as a man of ordinary prudence commonly uses under like circumstances; care proportioned to the danger to be avoided, and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances under which it was to be exercised. If all people exercised the greatest possible caution in approaching and crossing railroad tracks, accidents would be much less frequent than they are; but the law does not require extreme care. Such care, and such only, as ordinarily prudent persons could reasonably be expected to exercise under the circumstances is the full measure. In order, therefore,to judge whether or not a fair question was presented regar ding plaintiff’s contributory negligence we must inquire into the circumstances as disclosed by the evidence.he introduced.

The evidence showed that the company’s road is operated on Eastern avenue, Cincinnati, a thoroughfare running east and west. It is a double-track electric road, the space between the tracks being about three feet. The cars are wider than the track, extending about one foot outside the rail. Defendant in error, Snell, resided on the north side of the avenue, between Washington and Weeks streets, the block between these streets being about 800 feet in length. Near his residence, in front-of a drug store, there was a flag stone street cross walk at which the cars were accustomed to stop to receive and discharge passengers. Snell-had been a daily passenger on the road for a number of years, and was known, as also his residence and place of getting on and off, to the railroad conductors. On the day of the accident Snell was a passenger on an east bound car on the south track. As the car approached the crossing the speed was slackened to allow Snell to get off, but did not quite stop. He stepped off outside of the south track at the crossing, and turned north to go to the north side of the street, which required him to cross both tracks. As he neared the south rail of the north track he was struck by a west-bound car and injured.

The evidence tended to show further that Snell xhad not observed the coming car before alighting, nor does it appear that he looked, while in the car, in the direction from which the other car was approaching. At some time, while crossing, he looked both east and west along the track, but the precise point from which he looked east is not clear. The conductor of the car on which he had ridden gave him no warning of the approaching car, nor was any gong or other alarm sounded, or warning given, by the motorman in charge of the coming car. He was inexperienced, having been the driver of a milk wagon until two or three days before. On the same car there was an experienced motorman, who was on for the purpose of giving the new hand instructions. At the moment Snell was struck the car was running about twenty miles an hour, on a down grade, and ran about one hundred feet before it could be stopped. The car from which Snellalighted was moving slowly east, and, had the other car been running at an ordinary rate of speed, Snell would probably have had, after he saw it, opportunity to avoid it; but the car moved so rapidly that, after seeing it, he had but time to throwup his hands and try to step back when the car struck him.

Thequestion presentedfor thecourtwas, simply, Did the evidence establish, as matter of law, that Snell was guilty of negligence contributing to his injury? The place of the accident was a street crossing, used as such by the public, and recognized as such by the company. It was the duty of the company to keep in mind the right of pedestrians on that crossing, and especially its duty to observe the rights of its own patrons who were under a necessity of using that crossing in going from its cars to their houses. Ancient rights have not changed because new vehicles of travel have been introduced upon the streets, nor because a portion of the people who ride, being in haste to reach their destination, demand rapid transit. The streets remain for all the people, and he who goes afoot has the right, especially at a crossing, to walk to his destination; he should not be compelled to run, or to dodge and scramble, to avoid collision with vehicles. As ageneral proposition, drivers of vehicles have the same right to travel along the carriageway of a street that foot passengers have to walk there. There is no priority of right, so that the right of neither is exclusive. But. it is to be borne in mind that the injury by collision is wholly upon the side of the footman; and the right of personal protection which every person possesses, together with that moral and legal obligation to refrain from doing an injury to his person which is imposed upon all others, gives the foot passenger such a right at street crossings as to make it the duty of drivers of vehicles, whether wagons, wheels or cars, to so regulate their speed and give such warning of approach, at whatever cost of pains and trouble on their part, as that the footman, using ordinary care himself and barring inevitable accident, may cross in safety. Life and limb are of more consequence than quick transit. The vehicle man must not run down the pedestrian. The opposite doctrine appears to have found lodgment in many minds, and there seems a disposition to assume that a foot passenger has nq right upon a public street as against a street car. Indeed, common observation seems to show that this belief controls the conduct of drivers of many conveyances, public and private. Too often there is a reckless disregard of human life and limb, and pedestrians are compelled, at their peril, to keep out of the way. As matter of law, it is as much the duty of the vehicle to keep out of the way of the footman, and especially so at crossings, as it is for the latter to escape being run over, giving due consideration to the greater difficulty of guiding and arresting the progress of the vehicle. The use of streets for railways is allowed only because it is considered not to be a substantial interference with their free and unobstructed use as highways for passage. So long, therefore, as there is no unreasonable interference with the public right of passage, railways in streets are lawful structures; but if operated upon the theory of exclusive right to their track, they become wrongdoers. Street Ry. v. Cumminsville, 14 Ohio St., 523; Coach Co. v. Railroad Co., 33 New Jersey (Eq.), 267; Baxter v. Railroad Co., 3 Rob.,516; Barker v. Savage, 1Sweeny, 288; Ry. Co. v. Block, 55 New Jersey (Law), 605; Attorney General v. Railroad Co., 125 Mass., 515.

Undoubtedly the footman must reasonably use his senses for his own protection, and if he knows of the approach of a vehicle, and, using his faculties, perceives that he cannot continue on without danger of collision, he may not rush forward regardless of consequences. He is not bound, however, to anticipate negligence on the partof drivers of vehicles, but has the right to assume that they will not be negligent.

In this case, if the, evidence was to be believed, there was a total disregard of plaintiff’s rights, a clear case of gross, culpable negligence. The company owed to the passenger who had just alighted the duty of permitting him to cross from its car to the opposite side of the street without peril of life or limb from the acts of the company; instead of which it sent its car down the grade at break-neck speed without giving any Warning, or taking any pains to avoid running him down. Snell, it is true, was bound to anticipate that a car might come on the north track, but he was not required to anticipate that it would come at such a dangerous rate of speed, for that would be presuming that the company would be negligent; and if, acting on the presumption that the company would not be negligent, he used such caution as men of ordinary prudence would have used, his own conduct did not preclude a recovery. Whether he did use such degree of care, we think, was a question for the jury. The evidence presented a case where different minds might reasonably reach different conclusions. We are not required • to determine the question whether or not Snell was negligent.

It is insisted that, in the best view of the ease for the plaintiff, the evidence shows that he did not look to the east; for while it maybe that the verbal evidence tended to show that he did look in that direction, yet he could not have done so, for if he had he surely would have seen the coming car, and that, as matter of law, it is neglig’enee for one about to cross a railway not to look each way. Authorities are to be found giving apparent support to this proposition. The practice in some courts is for the court to direct a verdict whenever, in the opinion of the judge, the evidence would not warrant a judgment. And some of these decisions imply that the court has held persons about to cross a street car track to the same degree of care as would be demanded were he crossing a steam railroad. We think there is no just analogy between the right of a street railway running cars along a highway and the right of a steam railroad running' its trains across a highway- at grade, and that the rule of care incumbent upon one about to cross a steam railroad is hardly a fair one to be applied in all its strictness to street railways in cities where a car that can be speedily stopped passes a crossing at frequent intervals, and where people necessarily cross the streets frequently and hurriedly. As remarked by Gray, C. J., in Lynam v. Ry. Co., 114 Mass., 83: “The cases relating to injuries suffered by being struck by a locomotive engine at a railroad crossing afford no test of the degree of care required of the plaintiff in this case. The cars of- a horse railway have not the same right to the use of the track over which they travel, do not run at the same speed, are not attended with the same danger, and are not so difficult to check quickly and suddenly, as those of an ordinary railroad corporation. A person lawfully traveling'upon the highway is not therefore bound to exercise the same degree of watchfulness and attention to avoid the one as to keep himself out of the way of the other. ’ ’ Other cases in Massachusetts are to the effect that the fact that plaintiff’s evidence does not show that he looked up and down the street before crossing is not, as matter of law, conclusive evidence that he was notin the exercise of duecare, and that the mere fact of not looking when one attempts to cross a railroad is not conclusive evidence of want of care. Williams v. Grealy, 112 Mass., 82; Bowser v. Wellington, 126 Mass., 391; Shapleigh v. Wyman, 134 Mass., 118. Whether such omission is or is not negligence depends upon the circumstances. Ry. Co. v. Block, supra; City Railroad Co. v. Robinson, 4 L. R. A., 126; Street. Ry. Co. v. Loehneisen, 58 N. W., 535; Shea v. Railroad Co., 44 Cal., 414; Swain v. Railroad Co., 93 Cal., 179; Driscoll v. Cable Ry. Co., 32 Pac. Rep., 591; Thomp. on Neg., 396, note. We suppose the rule for street ears is the same as for other vehicles, and if the footman is required, in a crowded thoroughfare, to look up and down and wait until all possibility of collision is past, it would be like sitting on the bank until the stream should run by, and there would be but few hours in the busy part of the day when it would be practicable to cross.

Whether looking eastward would have disclosed the coming car depends upon whether the receding car .would have obstructed the view, and this depends upon its location at the time Snell looked, if he did look. The evidence is consi stent with the conclusion that he looked up the track, but that the receding car prevented him from seeing the approaching one, and that, as the former made some noise, his attention was not called to the rúmbling of the latter. And it is not inconsistent with the conclusion that ordinary range of vision would probably have enabled him without turning his head or eyes up the track, to see a car in time to, avoid it had the car been running at a safe rate of speed, and we think one so crossing could not be asked to extend his observation beyond that distance within which a car proceedingat a customary and reasonably safe speed would threaten his safety.

Taking the effect of the evidence as a whole, one thing which is tolerably clear is that if the car had been running at a reasonable rate of speed, and proper warning had been given, Snell would not have been injured; all else is in more or less doubt. The evidence pro and con, therefore, was to be weighed, and the tribunal for that purpose was the jury, not the court upon the motion.

The judgment of reversal was, we think, right, and the same is affirmed.

Shauck, J.,

dissenting.

The case upon which the trial judge gave a conclusive direction to the jury, taking the view most favorable to the plaintiff that the evidence would permit, was that his senses of sight and hearing were normal, that he knew he was upon a double track electric railway, that he quit a car and immediately passed to its rear toward the the other track without looking in the direction from which the colliding car came, and was struck and injured by a car approaching at a rate of speed which, under the circumstances, was dangerous, and that he had no knowledge of its approach. The negligence of the defendant is conceded, and the material inquiry relates to the conduct of the plaintiff:. The degree or character of the defendant’s negligence cannot be material, if, by due care on the part of the plaintiff, the injury would have been avoided.

Upon this subject it is said in the principal opinion; “Undoubtedly the footman must reasonably use his senses for his own protection, and if he knows of the approach of a vehicle, and, using his faculties, perceives that he cannot continue on without, danger of collision, he may not rush forward regardless of consequences. ” If this means that under such circumstances the footman is required to use his senses of sight and hearing to ascertain whether a car is approaching upon the track which he is about to cross, it is a correct statement of the law and a full justification of the direction given to the jury. If, however, it means that nothing is required of him except to act rationally in view of dangers that ma}^ be threatened from a car of whose approach he may happen to know, it defines a rule which, in view of the difficulty in proving his knowledge, is incapable of practical application, and which is in conflict with the adjudicated cases and the established principles of the law of negligence.

Some of those principles are accurately though generally stated in the foregoing syllabus and opinion. But the law, keeping pace with the progress of society, has, from those general principles, deduced definite rules of conduct, applicable to situations which, arise frequently. Such a rule was defined by this court in Railroad Co. v. Sipes, adm’r, 24 Ohio St., 631, by which it is made the imperative duty of “a person in the full enjoyment of the faculties of seeing and hearing, before attempting to pass over a known railroad crossing, to use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence which will defeat an action by such person for an iujury to which such negligence contributed.” That rule has been affirmed in very many cases, among which are Railway Co. v. Elliott, 28 Ohio St., 340; Railway Co. v. Rathgeb, 32 Ohio St., 66; Railroad Co. v. Whitacre, 35 Ohio St., 627. In Railway Company v. Rathgeb the general rules were correctly given to the jury, but the judgment of the trial court was reversed by this court because there was not given the definite and particular rule which the trial judge applied in this case.

Neither the authorities nor the reasons involved will permit a distinction between steam cars on the one hand and electric and cable cars on the other as to the application of this rule. Bailey v. The Cable Ry. Co. (Sup. Ct. California), 42 Pac. R. 914; Buzby v. Traction Company, 126 Pa. St., 559; Ward v. Rochester Electric Ry. Co. 17 N. Y. Sup. 427; Fritz v. Detroit St. Ry. Co., 62 N. W. R. 1007; Boerth v. West Side Ry. Co., 87 Wis. 288. The distinction is not encouraged by the decisions of the Supreme Court of Massachusetts, cited in the majority opinion. They relate to horse cars, which are likened to ordinary vehicles because of their low speed, and the ease with with they may be stopped.

It is true that the introduction of a new motive power for the purpose of rapid transit, has not changed the relative rights and duties of carriers and footman. It is equally true that it imposes upon carriers and footman alike the duty of exercising greater absolute care. This is true because the rules of relative care have not changed. The carrier is required to use greater care because of the increased speed of its cars and their greater weight, and the footman must use greater care because of his knowledge that he is exposed to greater danger.

There are considerations of grave importance which cannot be eliminated from cases of this character. The car cannot be stopped instantly, nor can it be turned from its track. The footman can instantly stop or change his course. Considerations of health and economy require that the populations of large cities occupy extended territories, whence arises the necessity for rapid transit. Transit cannot be rapid as to those aboard the ears and slow as to those crossing the street. The same considerations require that there shall be low fares. Prom the fact that these carriers have no mysterious sources of revenue, it results that compensation awarded to the careless, though in the form of a judgment against the carrier, must be ultimately paid by its careful patrons. The whole duty of the public in this regard is performed when they compensate those who, while in the exercise of due care, are injured by the carelessness of the agencies which public necessities have called into existence. In view of these and like considerations, I am not willing to seem to believe that it is practicable either to protect those who go upon the crowded streets of cities with slumbering senses, or to compensate them for injuries to which a failure to use their senses contributes.

The course of the trial judge in this case is worthy of commendation. Having devoted enough time to the orderly examination of the case to disclose a conclusive reason why the plaintiff could not recover a verdict according to law, he directed the verdict which the law required. The plaintiff had no constitutional or legal right to recover a verdict upon which he could not recover a judg’ment. Had the case been submitted to the jury upon general instructions, the Court would not have been sitting to administer justice, but to experiment with a verdict. Such a course was required by no right of the plaintiff. It was forbidden by justice to the defendant and by a due regard for the rights of the public in a speedy administration of justice.

Burket, J., concurs in the dissenting opinion.