text:
    Railroad Company v. Fitzpatrick.
    1. A railroad company is under obligation to its employees engaged in the management of its trains, to exercise reasonable care and diligence in furnishing and maintaining safe and fit cars for trains on its road.
    2. Within the scope of this duty it is bound to use reasonable care in the employment of careful and competent inspectors of cars, and the means of repairing defects in those to be used in its trains.
    8. A railroad company is not liable to the suit of one of its servants, for injuries caused by the negligence of a fellow servant engaged in the same employment.
    4. Inspectors of cars in the yards of the company, and brakemen on its trains are to be regarded as fellow servants engaged in a common service. Columbus & Xenia Railroad Company v. Wébb, 12 Ohio St. 475, approved.
    5. Where a judgment is sought to he reversed for error in overruling a motion for a new trial on the ground that the verdict was contrary to the law and evidence under the act of April 12, 1858, and the record discloses the whole of the testimony, the charge as given, and the requests to charge which were refused, the court will examine the whole record to see whether the case was fairly and legally tried, although the exceptions to the charge or the refusal to charge were in general terms, or no exceptions whatever were taken. M. & O. Railroad Company v. Strader, 29 Ohio St. 448 ; § 5301, Revised Statutes.
    ERROR to the District Court of Franklin county.
    The original action was brought in the court of common pleas of Franklin county, by John Fitzpatrick against the Little Miami Railroad Company, for injuries to his person, alleged to have been caused by the carelessness and negligence of the company. The company denied carelessness or negligence on its part, and averred that the injuries complained of were caused by the negligence of the plaintiff, upon which averment issue also was taken.
    A verdict and judgment were finally rendered in favor of the plaintiff.
    A motion for a new trial, on the ground that the court .erred in refusing to instruct the jury as requested, for error in the charge given, and that the verdict was contrary to the evidence and law, was made and overruled.
    A bill of exceptions containing all the testimony, the charge given, and the requests refused, was made part of the record.
    The judgment of the common pleas, on error to the district court, was affirmed.
    A petition in error is now prosecuted by the railroad company in this court, to reverse the judgment below.

      C. N. Olds, for plaintiff in error :
    This court has held more than once, and such is the law, that it is the duty of a railroad company to use all reasonable and ordinary care in providing safe and suitable structures, engines, tools and apparatus for the use of its employees; but the use of reasonable and ordinary care in that direction, is the extent of the obligation, and should have been so limited by the court. .Railroad Co. v. Webb, 12 Ohio St. 475 ; Railroad Co. v. Devinney, 17 Ohio St. 210.

      Lorenzo English and J. W. Baldwin, for defendant in error:
    As to the duty of the master to provide suitable machinery, &c., see R. R. Co. v. Webb, 12 Ohio St. 475; Me Gatrich v. Mason, 4 Ohio St. 566; Railroad v. Keary, 3 Ohio Sr. ; Railroad Co. v. Barber, 5 Ohio St. 541; Wood’s M. & S. 687, 691, 721, 723, 724; Snow v. R. R. Co., 8 Allen (Mass.) 441. Inspection of cars, negligence. Wedgwood v. Ry. Co., 44 Wis. 48.
    The rule which exempts the common master from liability to one servant for injuries caused by the negligence of a fellow servant has its exceptions, see Ilaiogh v. Ry. Co., 100 U. S. 213, and authorities there cited. Ford v. Ry. Co., 110 Mass. 241; Wharton on Neg. §§ 211, 212, 232; Fay v. Ry. Co., (Minn.) 15 North Western Reporter, 242; 26 Minn. 40; 14 Fed. Rep. 277 ;' Underhill on Torts, 56.
    As to form of exceptions, see 32 Ohio St. 77; Id. 562 ; 33 Ohio St. 419 ; 25 Ohio St. 584; 29 Ohio St. 412; 32 Ohio St. 219; 30 Ohio St. 104.'
   McIlvaine, J.

This action was brought to recover damages for injuries which the plaintiff in the action below, John Fitzpatrick, alleged he received by reason of the negligence of defendant, Little Miami Railroad Company, in permitting a car or cars to be used in a freight train running from Cincinnati to Columbus which were unsafe and unfit for use, upon which train the plaintiff was employed as brakeman on October 3, 1879.

The alleged defects consisted of a hole burned in the runway upon the top and near the front end of the car, over which it was the duty of the plaintiff to pass in discharging his duties as brakeman, and of a loose brake-wheel upon the end of the car in the immediate vicinity of the hole.

Tbe plaintiff’s claim was that be came on the train, as brakeman, en route, at Selma, by an exchange with one Gan ter ; and at daybreak, while in the discharge of his duty, discovered the hole before unknown to him, and in attempting to pass it slipped, without fault on his part, and caught hold of the brake-wheel which, being loose, gave way and he was precipitated to the ground between the moving cars, thus receiving the injuries complained of.

Among other things the defendant, by way of defense denied that the supposed injuries occurred by reason of any fault, negligence or carelessness on its part and offered testimony tending to prove that the train before leaving Cincinnati had been inspected by employees of the company, whose duty it was to inspect all cars at that point and if found defective to detain them for repairs before permitting them to go on the road. That competent inspectors and repairers under the control of a competent foreman were kept by the company at Cincinnati for that purpose.

In respect to this testimony the court charged the jury as follows: “ The defendant has offered testimony tending to show the custom and duty imposed upon the servants of the company in regard to inspecting cars at Cincinnati, and that defective, unsafe or insufficient cars were not suffered to go on the road, but were retained for repairs. This evidence was permitted to go to the jury as reflecting upon the probable condition of the ear in. question at the time it left Cincinnati. Now, if you shall find that the run-way or running-board and the brake-wheel in question were in good repair and condition when the car left Cincinnati, and by an unavoidable accidént the defects complained of occurred whilst the train was on the road, this will make a case of unavoidable accident for the consequence of which the defendant cannot be held liable.”

But the court further charged the jury : “ Now, if you find that the defendant permitted a defective and improper brake-wheel to be on a car, and permitted a car to be placed on a train in which the run-way or running-board was in a broken and otherwise defective and dangerous condition, so as to render it insecure or unsafe in reference to the jiurpose for which the same is to be used by the brakemen; and if you further find that the plaintiff was ignorant of the condition of the brake and of the run-way or running-board; and, if you further find, that being so ignorant, and being in the line of his duty, by no want of ordinary care on his part, in attempting to pass from one car to another, his foot slipped and he was caught in a hole or other defect in the run-way or running-board, and that he attempted to prevent himself from falling by grasping the brake-wheel; that by reason of the defective and insecure condition of such wheel, it came off the rod to which it should have been firmly attached, and that by iva on of these defects in the run-way or running-board and brake-wheel, the plaintiff fell and was thrown off the car and und- r the brakes, and by means thereof he received the injury of which he complains; then you will be authorized to find that the defendant was guilty of negligence in failing to provide a car safe and road-worthy ; and if by reason thereof, the plaintiff, whilst engaged in the duties of his employment, being himself guilty of no want of ordinary care, the accident occurred, which caused the injury, the defendant is liable to the plaintiff for the consequences.”

The court, however, refused among other things, to instruct the jury as follows :

If the jury shall find, from the evidence, that there was such a defect in the running-board and brake of one of tire cars, as alleged in the petition, yet if the existence of such defect at the time of the accident was owing to the neglect of other operatives of the road, supposed to be competent, whose duty it was to have inspected said running-board and brake but who neglected so to do, and negligently suffered the same to continue in use when not road-worthy; if such defect was unknown to the company, it is.not liable therefor, inasmuch as such delinquent inspector is to be regarded as a fellow-servant of the brakemanin a common service, and the plaintiff cannot recover in this action.

Under the circumstances of this case and especially in view of the foregoing charges it is claimed that the court erred in refusing to give this request. On the other hand it is contended that if the request contained sound law there was no sufficient exception to its refusal. The exception was “ to the declining to give the instructions sought.” True, the request was made at the same time with others, some of which were in substance given while others were refused, but no such series of requests was made as to justify the court in refusing this one on the ground that others were inadmissible ; and although the exception was to the refusals in gross, still we think after examining all the testimony, there was such doubt as to the existence of the defects in the cars and as to the time and place of their origin that this court should look to the whole record to see if error intervened to the prejudice of plaintiff in error, although the exception to the charge was general. Marietta and Cincinnati Railroad Co. v. Strader & Co., 29 Ohio St. 448.

We are thus brought to the question should the request or its equivalent have been given ?

We think it quite clear from an examination of the charge given that this request was refused on the ground that it was unsound in the opinion of the court, notwithstanding such was declared to be the law in Columbus and Xenia Railroad Co. et al. v. Samuel Webb's Adm'x, 12 Ohio St. 475, by a unanimous court after grave deliberation.

In that case as in the one before us the injury happened while the car was en route, from alleged negligence of the company in supplying the car with safe and suitable brakes, and it was in proof that the car was inspected before it was put on the road. On this phase of the case the court said, “ That if the existence of such defect at the time of the accident, was owing to the neglect of other operatives of the road, supposed to be competent, whose' duty it was to have inspected said brake, but who neglected so- to do, and negligently suffered the same to continue in use, when not road-worthy, unknown to the company, it is not liable therefor, inasmuch as such delinquent inspector is to be regarded as a fellow-servant of the brakeman, in a common service.” Some criticism has been made on the meaning of the word “ operatives,” as used in the request as well as in the opinion of the court above stated. It is suggested that the word is broad enough to include the officers and agents of the road, to wit, those standing as the immediate representatives of the .company. While we are inclined to think that the knowledge or negligence of such would be the knowledge or negligence of the company, for which it would be liable, we do not think that the phrase “other operatives” when used to designate a class to which brakemen may belong, has such significance. And if “ other operatives ” is confined to employees who do not represent the company, as we think it is, the proposition contained in the request is undoubtedly correct and inspectors are fellow workmen with brakemen, and are engaged in a common service, to wit, in the operation of the road.

Perhaps-there is no principle in law more firmly settled by common law courts than that the common employer is not responsible for an injury to one employee occasioned by the carelessness of his fellow servant engaged in the same service ; but it must be admitted a diversity of opinion' exists on the question whether the inspectors of railroad machinery are fellow servants with brakemen engaged in operating the'machinery-

On this question, for more than a score of years, during great aótivity in railroading, Webb's Case, supra, has remained unchallenged as' the law of this state for the government of railroad companies and of those contracting to serve them in the capacity of brakemen, declaring the rule to be that the relation of fellow servants exists between inspectors and brakemen.

Undoubtedly the law requires a railroad company to exercise reasonable care in providing and maintaining safe machinery for the use of its employees engaged in running trains upon its road, but such employer as to such employee is not án insurer of the fitness of its machinery for the purpose for which it was intended. It is bound to vigilance, but vigilance is the maximum of its duty. The successful management of a railroad requires the co-operation of many servants. Reasonable care in the employment of careful and competent servants is required of the company, but the exercise of reasonable care by such servants is at the risk of his fellow servants. The car alleged to be defective in this case, as the testimony tends to show, was the car of another company on its way home; but admitting'the duty of the company was the sanie as if it had been its own car, this duty was to employ competent and careful inspectors and repairers. If that were done, its duty to other operatives of the road was performed.

Without undertaking to review all the cases on this point, I will cite a very recent case, Mackin v. Boston and Albany Railroad Co., 135 Mass. 201, decided in 1883, the facts of which are very similar to the case before us. In this case it was held that an inspector of a railroad car and a brakeman employed on the car are fellow servants ; and the latter can not maintain an action against their common employer for an injury resulting from the failure of .the'former to perform his duty. The rule in this case was regarded as the necessary result of a former decision in Holden v. Fitchburgh Railroad Co., 129 Mass. 268, that the duty of a railroad company to. its employees, in respect to those things it is bound to furnish and keep in good repair, is that of using reasonable care.

Judgment reversed and cause remanded for a new trial.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Meinzer v. Bevington.
    The provisions of sections 6053 to 6059 Rev. Stat., which authorize summary proceedings and judgment against persons concealing, embezzel-ing, or conveying away assets of the estate of any deceased person, do not authorize a creditor,devisee, legatee, heir, or other person interested in the estate to prosecute such proceedings against the executor or - administrator of such estate.
    MotioN for leave to file petition in error to the District Court of Crawford county. . .
    Plaintiff in error, C. L. Meinzer, was on the' 30th of August 1880, duly appointed administrator of the estate of John Gr. Essig, who died August 20, 1880.'

      He accepted the appointment and gave bond witb sureties approved by the probate court of Crawford county, and entered upon the discharge of his duties.
    On the 10th of January 1881, Cassola Y. Herrer, one of the heirs of said deceased, by H. S. Bevington, her guardian, filed in the probate court of said county, under the provisions of sections 6053 to 6059 of the Revised Statutes, a complaint, charging that the said C. L. Meinzer and his wife, Mary E. Meinzer, were guilty of embezzlement by concealing and em-bezzeling moneys, goods, chattels, things in action and effects, belonging to the estate of said Essig, in fraud of the rights of said heir.
    Upon this complaint a citation was issued against said administrator and his wife, to appear and be examined touching the matters complained of.
    February 7, 1881, they appeared before said probate court, wrhere they and several other witnesses were examined, and their examinations reduced to writing; thereupon the court found defendants not guilty, but ordered said administrator to pay the costs of the proceeding, to which the guardian excepted and gave notice of his intention to appeal the case.
    It was further ordered that said administrator file in said court an inventory of all the newly discovered assets that have come to his knowledge since the filing of the first inventory. No order or judgment was rendered against the said Mary E. Meinzer. On appeal the case was heard in the common pleas upon the evidence taken in the probate court upon which it was ordered, that said administrator charge himself, 1st with the amount in value of a certain note given by Hacket & Oo. to John G. Essig.
    2d. With cash belonging to said estate $1,985.
    3d. With one-half of 603 bushels of wheat raised on farm of the deceased in the year 1880.
    4th. One-half of the corn, and one-half the timothy seed, for same time raised on decedent’s lands.
    To reverse this judgment the administrator filed a petition in error in the district court of Crawford county where the same was affirmed.
    To reverse these judgments is the object of the present motion for leave to file petition in error.

      S. B. Harris, for the motion.

      Finley & Baton, contra.
   Johnson, C. J.

The only question we shall consider is whether the probate court, or the court of common pleas, on appeal, had the power to make the order asked for at the instance of one interested in the estate against the administrator of the estate.

Sections 6053 to 6059 inclusive are the revision of the act of February 26, 1843 (S. & C. 618),» which was supplementary to the general administration statutes.

Section 6053 provides, that upon complaint made by the executor, administrator, creditor, devisee, legatee, heir, or other person interested in the estate, against any person or persons, suspected of having concealed, embezzled, or conveyed away any of the moneys, goods, chattels, things in action, or effects of such deceased, the probate court shall cite the person or persons suspected to appear and be examined on oath touching the matters of the complaint.

By section 6054 if a person so cited shall refuse or neglect to appear and submit to such an examination or refuse to answer lawful interrogatories, said court shall commit him to the jail of the county, there to remain in close custody until he or she submit to the order and of the court in that behalf.

By section 6056 the court is authorized to examine other witnesses, at the request of either party, whose examination shall be reduced to writing and filed the same as that of the accused.

By section 6057, if it shall appear on such examination that the persons charged are guilty, the court shall forthwith render a judgment in favor of the executor or administrator of the estate, or, if there be no executor or administrator in this state, in favor of the state, against the person or persons so found guilty, for the amount of the moneys, or the value of the goods, chattels, things in action, or effects so concealed, embezzled or conveyed away.

By section 6058, the executor or administrator in favor of whom such judgment shall have been rendered, may deliver to the clerk of the court of common pleas, a transcript on which said clerk shall issue an execution, and thenceforth proceedings shall be in all respects the same as if said judgment was rendered in the court of common pleas.

These provisions are supplementary to the general statutes and fhe law governing the settlement of estates. 1 S. & C. 618. Without them, there was ample provision for compelling an executor or administrator to faithfully perform the duties of his trust. They were intended to furnish a speedy and summary remedy in favor of the executor or administrator, against any person or persons charged with having concealed, embezzled or conveyed away, any of the assets of the estate.

, The com]5laint may be made by the executor or administrator, or by any person interested in the estate, but the judgment must in all cases, be in favor of the executor or-administrator, if there is one in this state. If not, then in favor of the state of Ohio, for the use of the estate. If there be one within the state he alone is authorized to proceed to enforce the judgment, but if thei’e is none then the prosecuting attorney of the cpunty shall proceed to collect the same and pay the same into the county treasury, less his compensation for the use of the estate. R. S. 6059.

A statute so summary in its nature providing for a judgment without pleadings, or due process of law, or the right of trial by jury, ought not, by construction, to be extended beyond it, plain and obvious terms.

The judgment of the court of common pleas in this case did nothing more than the probate court had power to do independently of these provisions, in the settlement of the accounts of the administrator. We hold, therefore, that the issuing of the citation against the administrator under these provisions of the statute was without authority of law, and therefore any judgment rendered by the probate court, or by the court of common pleas on appeal, was a nullity.

The right of appeal given by section 6407 in such cases relates to judgments where the probate court had jurisdiction to'hear and determine such a complaint. The judgments of the district court and of the court of common pleas are reversed and this cause is remanded to the common pleas with orders to dismiss said appeal.


author: Follett, J.,

text:
    Lowe v. Redgate.
    1. A. owned adjacent lots lying north of an alley, and east of a street, and he laid out an alley extending east from the street on the west through the middle of the lots, and the part south of the alley he divided into sub-lots abutting on the alley, and made a plat of the same so divided. ( A. then sold to B. a sub-lot on the south side of this new alley, and prepared the deed for it by the aid of the plat, and showed both the deed and the plat toB., who insisted that the deed should contain a conveyance of the use of the new alley ; and before executing the deed' A. put into the granting clause of the deed the words : “The above named grantee, B., is entitled to the use of another alley lying north of the premises hereby conveyed. Possession to he given April 1, 1874 then the deed was executed, the purchase money was paid, and the deed was delivered to B. As between A. and B., or her heirs or assigns, Held: (1) A. is estopped from denying the existence and location of the new alley, and the plat and deed are conclusive against such denial. (2) A. thereby granted to B. an easement in the alley appurtenant to the sub-lot conveyed to B.
    2. Where husband and wife are sued for alleged trespasses by the wife on a private alley in which the wife in her own right claims an easement and right of use appurtenant to a lot owned by her, in default for answer by the husband, the wife may make a separate defense without prejudice by such default, and, if her defense is good, it is complete as to both.
    EeboR to tlie District Court of Montgomery county.
    Peter P. Lowe brought suit against Samuel J. Redgate and Mary T. Redgate, for $1,000, damages for alleged trespasses of Mary T. Redgate, who was the wife of Samuel J. Red-gate. The plaintiff averred that Mary T. Redgate, on April 1, 1880, and on divers days since that time, without leave, wrongfully entered into and upon a strip of ground, being a rectangle forty feet long by fifteen feet wide, in lots numbered 1431 and 1438 in the city of Dayton, and broke down and destroyed a fence which had been erected by plaintiff across this strip of ground, &c. Samuel J. Redgate did not answer, as he seems to have been away, but Mary T. Redgate defended for herself. In her answer she averred that the strip of-ground in the petition described, is part of a private alley extending west through the west thirty feet of lot 1438 and the whole of lot 1437 to Jackson street; that on the 28th day of June, 1873, and long before that time, plaintiff owned lots 1437 and 1438 except a part of lot 1437 south of this alley and fronting thereon, which was then owned in fee by her ; that the plaintiff and his wife, on June 28, 1873, by deed of that date, for the consideration of $1,000, conveyed to the defendant, Mary T. Redgate, in fee, part of lot 1438 lying east of her fifty feet, and fronting thirty feet on the alley, and south thereof, and, as appurtenant thereto, the use of the adjoining alley lying north of the premises so conveyed, and that the fence obstructed her use thereof, and, after notice to plaintiff, it was removed by her without unnecessary injury, as it might lawfully and rightly be done.
    Plaintiff replied, denying that the strip of land ever was part of an alley, and averred that the same was and is only a private way in gross for the personal use of Mary T. Redgate, etc. On the trial, the jury found for the defendant.
    The plaintiff’s motion for a new trial was overruled, and a bill of exceptions was filed. This shows that upon the trial of the cause the plaintiff testified in his own behalf ; and upon cross-examination testified, that on June 28, 1873, he executed to the defendant, Mary T. Redgate, a deed of conveyance, of which the following is a copy :

      “ Know all Mm by these Presents:

    “ That Peter P. Lowe of the City of Dayton, Ohio, in consideration of one thousand dollars to him paid by Mary T. Redgate of the same place, the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey to the said Mary T. Redgate her heirs and assigns forever, the following piece of ground situate in lot No. 1438 in the City of Dayton, Montgomery County, Ohio, commencing at a point 15 feet East of the South-West corner of said Lot No. 1438 on the alley south of said lot, thence running East with said alley 15 feet, thence North, parallel with the East line of said lot 66 feet thence West, parallel with the South line of said lot 1438, thirty feet to the East line of lot No. 1437, thence South with the East line of said lot 1437, 34 feet to a, stake, thence East, parallel with the South line of lot 1438, fifteen feet to a stake, thence South, parallel with the East line of said lot 1437, thirty-two feet to the place of beginning ■ — The above named grantee Mary T. liedgate, is entitled to the use of another alley lying North of the premises hereby conveyed. Possession is to be given 1 April, 1874, and all, the Estate, Title and Interest of the said Peter P. Lowe either in Law or Equity, of, in and to the said premises, together with all the privileges and appurtenances to the same belonging : To have and to hold the same to the only proper use of the said Mary T. Redgate her heirs and assigns forever, and the said Peter P. Lowe for himself and for his heirs executors and administrators, do hereby covenant with the said Mary T. Redgate, her heirs and assigns that he is the true and lawful owner of the said premises and has full power to convey the same, that the title so conveyed, is clear, free and unincumbered, and further, that he will warrant and defend the same against all claim or claims of all persons whomsoever.
    “ In witness whereof, the said Peter P. Lowe and Ann Lowe his wife, who hereby releases her right and expectancy of dower in the said premises, have hereunto set their hands and seals this 28th day of June, in the year of our Lord, one thousand eight hundred and seventy-three.
    • “ Peter P. Lowe, [seal.]
    “ ANN Lowe. ■ [seal] ”
    This deed was duly signed, sealed, and acknowledged.
    That a short time prior to the execution of said deed, he had for his own convenience caused to be made a plat of so much of lots Nos. 1437 and 1438 In Dayton Ohio, as was then owned by him, of which plat the following is a copy—

    “ Plat of Peter P. Lowe’s sub-division of in-lots Nos. 1437 and 1438 in the city of Dayton. The above plat represents the lines as laid out and surveyed by me.
    “ SaM. B. Shoup, Surveyor

      Plaintiff: was tben the owner of all of said lots 1437 and 1438, except sixty-six (66) feet off the rear or south end of said lot No. 1437, and a parcel or piece of ground 15 feet in width by thirty-two (32) feet in length in the south-west corner of said lot No. 1438, which said parcels at that time belonged to said Mary T. Redgate and still belong to her. On said plat said lots 1437 and 1438 extend across the whole length thereof from Fifth street on the north to the alley on the south.,’
    Said plat was never recorded, and was made merely for his own convenience and to assist him in determining how he could sub-divide said premises to the best advantage.
    PlaintjfE’s contract for the sale of the premises described in said deed to Mrs. Redgate was made with one Sowers, who acted as her agent and agreed verbally to give for said premises as the same are bounded and described in said deed the sum of one thousand- ($1,000) dollars. In making said contract, nothing was said by either party about said private alley or any alley on the north side of said premises, and said plat was not shown to said agent nor said defendant Mary T. Red-gate. Afterwards the defendant Samuel J. Redgate came to plaintiff’s office, and said Mrs. Redgate would take the property at the price named, and plaintiff got said plat or map for the purpose of taking therefrom and writing in said deed the metes and bounds and a description of said premises, and thereupon wrote said deed and inserted therein the description of said premises by metes and bounds as the same now appears therein, and had fully prepared the deed for execution, when Samuel J. Redgate having observed this plat wrhile the plaintiff was writing the- deed,' said he wanted the use of this alley for his wife. The plaintiff at first refused to give her, said Mary T. Redgate, the use of any part of said alley, but finally consented to give her the personal use of said forty feet and then inserted in said deed the following clause, to wit: “ The above iamed grantee, Mary T. Redgate, is entitled to the use of another alley lying north of the premises hereby conveyed. Possession to be given 1st April 1874.” No additional consideration was paid or agreed to be paid for the use of said alley. Said Mary T. Redgate lias at no time attempted to use said alley personally, but ever since the execution of said conveyance has rented said premises to tenants, and has undertaken to transfer and assign to them the use of said alley, and they have used and attempted to use the same as a way for animals and vehicles. The defendant, Mary T. Redgate, is an infirm old woman, who, at the time of this conveyance to her and long afterwards resided in a part of the city remote from the premises. Her husband Samuel J. Redgate attended to her business and is now said to be in England.
    The agent, Mr. Sowers, employed by her to negotiate for the premises with the plaintiff, died before any litigation arose in relation to the alley. +

    There was other testimony as to the obstructions, where the fence was, when and how removed, the amount of damages, etc.
    The defendant offered no evidence, as she relied upon her rights under the deed.

    And thereupon said plaintiff asked the court to charge the jury that said deed gave to the said Mary T. Redgate only the right to use said alley personally, and not a right of way for vehicles or animals; and that she could not transfer or assign her right to use said alley to her tenants or other persons, and that said plaintiff had the right to fence said alley to prevent its use by persons other than said defendant, provided he did not interfere with the personal use thereof by said defendant, which charge the court refused to give, and said plaintiff excepted. And thereupon, said plaintiff further asked the court to charge said jury, that upon the pleadings and the evidence in said case said jui-y was bound to return a verdict for said plaintiff, and that the only question which should be considered by said jury was the amount of damages which should be awarded to said plaintiff, which charge said court also refused to give and said plaintiff excepted. And thereupon the court charged the jury in writing, and stated fully the issues made by the pleadings; and also charged the jury that, “ The defendant Mary T. Redgate by her separate answer, justifies under a claim of right to the use of the premises on which, the trespasses are alleged to have been committed, by a deed to her from the plaintiff. I take it therefore to be the law, and so hold, that in pursuance of her right to control and manage her separate estate, that the defendant, Mary T. Red-gate, in a case like the present, has the right to make asepai’ate defense, and that she cannot be prejudiced by the default of her husband to make one. If her defense is good it is complete as to both. If insufficient, a joint judgment may be rendered against both or a separate judgment against her husband if he only is found to be the guilty party. The deed put in evidence under which defendant seeks to justify, shows that it was executed to her on the 28th of June, 1873, by the plaintiff, for the lot of land therein described, and as part of the granting clause of the same are found the words following, which I am asked to construe as to the character and extent of the easement thereby conveyed. The words are : — “ The above named grantee Mary T. Redgate is entitled to the use of another alley lying north of the premises hereby conveyed.” In the case of Irwin's heirs v. Longworth, 20 Ohio Reports, 603, the supreme court laid down this rule of construction in the case of deeds. “ A strict, literal and grammatical construction of an instrument in its various parts, taken separately, would sometimes be absurd, sometimes contradictory and frequently unjust, because against the manifest intention of the parties; but a liberal consideration is to be had of the whole instrument in relation to the subject matter, to discover what was the true intention of the parties.” Looking at the deed from the plaintiff to the defendant Mary T. Redgate, according to the rules of construction just cited, taking the whole instrument, habendum and granting clause together, I ain led to the conclusion and so hold, that the words in said deed, conveyed an easement in fee in the alley referred to therein, if such an alley existed in fact or in the contemplation of the parties along or against the line of the lot conveyed, at the time of the conveyance, either as a public alley or as a private alley or strip of land, if the ownership of which was then in the plaintiff.”
    The plaintiff excepted to so much of said charge as instructed the jury that the defendant Mary T. Redgate had the right to make a separate defense in said action, and could not be prejudiced by the default of her husband, and that if her defense was good it was complete as to both. And said plaintiff further excepted to so much of said charge as instructed said jury that the words in the deed of said plaintiff, to said Mary T. Redgate, “ conveyed an easement in fee in the alley referred to therein, if such an alley existed in fact or in the contemplation of the parties along or against the line of the lot conveyed, at the time of the conveyance, either as a public alley or as a private alley or a strip of land, if the ownership of which was then in the plaintiff.”
    After judgment for defendant, the ease was taken to the district court on error, where the judgment was affirmed; and plaintiff brings his case here, claiming error.

      Young c& Young, for 'plaintiff in error :
    An easement can only be created by grant. Ways of prescription, implication or necessity all rest upon the presumption of a grant. 2 Washburn on Real Prop. 301, 303.
    Did this deed grant to the defendant as appurtenant to the premises therein conveyed a right of way over the ground designated on the plat as a “private alloy ?”
    With reference to this alley there are no granting words in the deed. The clause referring to it is entirely distinct and independent of the prior clause describing the premises conveyed.
    An easement, such as described in defendant’s answer, is a right in the owner of one parcel of land, by virtue of such ownership, to use the land of another for a special purpose not inconsistent with the general property of the owner, and there must bo both a dominant and servient estate. 2 Washburn R. P. 299 ; 38 Cal. 113.
    But here the alley is not mentioned in connection with the estate or premises conveyed, but only in connection with the person of the grantee. And, if a grant was intended, there is nothing in the language of the deed which manifests an intention on the part of the grantor to grant the use of the alley for the benefit of or as appurtenant to the premises conveyed, but only to the grantee, personally, for her personal use.
    The intention to make it appurtenant must appear from the deed itself, and cannot be ascertained by parol, or matters aliunde ; and in the absence of any such expressed intention in the deed, or any language describing it as appurtenant, or from which it can fairly be implied, we insist that at the very best, this clause amounts to no more than the grant of a right of way in gross to the defendant. Wagner v. Hanna, 38 Cal. 111.
    The testimony shows that Mrs. Redgate never attempted to use said alley, personally, but living remote from the same, transferred and assigned its use to her tenants. Such use, by her tenants, the plaintiff had the right to prevent, and if necessary to that end, stop the use of the alley altogether, until the lawful could be separated from the unlawful use. Wash-burn on Easements, 677; Washburn on Easements, 252 (195*) ; Allans v. Hoardman, 2 Met. (Mass.)-, 464 ; Garland v. Harter, 47 N. II. 301; B eaver v. Coleman, 44 N. H. 539; Maxwell v. MeAtee, 9 33. Mon. 20; JDavemport v. Lamson, 21 Pick. 72 ; Goddard on Easements, 281; 14 Allen, 42.
    Not being granted as an appurtenance, it cannot be made so by the habendum, which cannot extend the subject matter of the grant. 3 Washburn on R. P. 438. As a way in gross it was not assignable. Boatman v. Lasley, 23 Ohio St. 614; Junction JR. R. Co. v. Ruggles, 7 Ohio St. 7; Washburn on Easements, 10 ; 19 Ill. 558; 3 Kent, 420; Angelí on Highways, § 1.
    If the plat was admissible to show what the parties intended, it was in the nature of a representation, and the declarations of the grantor made at the time, qualifying such representation, were properly admitted in evidence, and should have been considered. Wallcer v. Worcester, 6 Gray, 548, 550.
    With regard to the claim that Mrs. Redgate had the right to make a separate defense, and could not be prejudiced by the default of her husband, and that if her defense was good, it was complete as to both, we refer to Cooledge v. Parris, 8 Ohio St. 694; Fowler v. Chichester, 26 Ohio St. 9 ; Ciarle v. Bayer, 32 Ohio St. 299.

      Iddings <& Iddings, for defendant in error:
    I. The deed containing a clause granting the right of way, by means of an alley lying north, it is not competent for the parties to claim that the grant of the way did not enter into the consideration of the deed. It would be as competent to except the buildings by parol. A right of way is never construed in gross when it can be fairly construed to be appurtenant. And the language used indicates that she take as “ grantee.” Washburn on Easements, ch. 2, § 1.
    II. The alley, being appurtenant, passes with the land. It i@ a part of it; and can be enjoyed by any one having title to the lands, whether for years, or for life, or in fee. And whether the title is in Mrs. Redgate in fee or,for life only in the right of way, in any event during her life (being an appurtenance), it is enjoyable by her or her tenants.
    III. But the right of way is neither in gross, nor limited to her during life. The grant indicates that the way granted is to be held by as broad a title as the land. For the way is first annexed to the land as an appurtenance ; and then, in the granting clause and not merely in the habendum), the “ privileges and appurtenances” are given to her and her heirs and assigns forever. The whole instrument is to be looked into to ascertain the extent of the grant.
    IT.. The deed refers to an alley lying north, and this estops the grantor to aver its non-existence. The extent of this es-toppel varies according to circumstances.
    T. The objection as to want of boundaries is not well taken. Leaving the plat out of consideration, if there was nothing but the language of the deed, the court would give a reasonable alley. The plat furnished the usual width. Washburn on Easements, 188.
    TI. As to the effect of the defense of Mrs. Redgate, her husband being in default, see Sprague v. Childs, 16 Ohio St. 107.
   Follett, J.,

Two questions arise in this case :

I. What right to or in this strip of land is conveyed by the deed to Mary T. Redgate ?

II. Can Mary T. Redgate defend alone for lier right ?

I. Eor the solution of the first question, we need look only.' to the plat and the deed. The plat, whether recorded or not, in this case is binding upon the plaintiff, and is conclusive upon him as to the boundaries and location of what he took therefrom and placed in the deed. It was by and from this plat, so made for him by a surveyor, and shown to grantee’s agent, that he made this deed. And the conveyance as to this alley so platted was required by Mary T. Redgate, through her husband who acted for her, before the deed was made and' before the money was paid.

This plat and the language of the deed show that there' was “ another alley lying north of the premises hereby conveyed,” as well as “ the alley south of said lot ” by which plaintiff bounded the premises conveyed. Plaintiff does not deny the existence of “ the alley south of said lot,” and in the • deed and in the plat he says just as distinctly' that there is “ another alley lying north of the premises hereby ;conveyed.” Now the plaintiff cannot be permitted to say, there is not an alley lying north of the premises so conveyed.

There is such an alley in this case. See Parker v. Smith, 17 Mass. 413; O'Linda v. Lathrop, 21 Pick. 292; Stetson v. Dow, 16 Gray, 372; Smith v. Lock, 18 Mich. 56; Smyles v. Hastings, 22 N. Y. 217; White v. Flannigan, 1 Md. 525; Goddard’s Law of Easements, 95, 96.

But plaintiff says, if there is such an alley, he conveyed only a right of way in gross, personal to Mary T. Redgate.

We will not examine the question, whether all rights of way merely are only in gross, and are not easements, as some claim, as this deed does not purport to convey simply a right of way. ■ ■

Easements exist at common law, and, among other way's,' may be created by deed. In this case, the nature and extent of the easement are- determined by the words’ used in the deed by the grantor.

The plaintiff had sold the lot adjoining and was conveying the same in fee simple. The purchaser insisted that lie should-also convey to the grantee the use of this alley lying adjacent on the north — not merely a right of way thereon.

The extent and location of this alley are shown by the plat; and plaintiff used the language in the deed to carry out his agreement with the grantee. He places this grant in the granting clause of the deed, so that all the other parts of the deed have reference to this burden and right in the servient estate, as well as to the other part of the granting clause.

That each part of a deed must be construed with, and in reference to, every other part thereof, is an established rule ; and in construing this part of this deed, the court below did not err in “ taking the whole instrument, habendum and granting clause together,” into- consideration. The deed does not purport to convey only a right of way in this alley; but the granting clause contains the words, The above named grantee, Mary T. Redgate, is entitled to the use of another alley lying-north of the premises hereby conveyed. Possession is to be given April 1, 1874.” And this use is granted to her, and to her heirs and assigns forever.

The other alley bounded the premises purchased and conveyed on the south, and this alley is spoken of as another alley lying north of the premises conveyed. She is thus granted the use of this alley for any purpose for which the alley may be used, and a definite time is fixed for taking possession of it; and this easement is appurtenant to the lot deeded. The court below did not err in the charge and conclusion, that the words in said deed conveyed an easement in fee in the alley referred to therein.”

II. Can Mary T. Redgate defend alone for her right ?

An affirmative answer to this question is apparent, when it is shown that Mary T. Redgate has the right to the use of the premises on which the trespasses are alleged to have been committed.

Revised Statutes, § 4997, provide : “ When husband and wife are sued together, the wife may defend for her own right; and if the husband neglect to defend, she may also defend for his right.”

Plaintiff, in his petition, charges her alone with the trespasses, and against such a charge she. may defend. Her answer in this case, set up a complete defense to plaintiff’s action, and this she established. The court did not err in the charge, as to her separate defense.

Judgment affirmed.


text:
    Fastbinder v. The State.
    1. In order to convict of shooting at with intent to kill, it must be averred and proved that the gun was loaded with powder and a bullet or some other destructive substance, which, when discharged from the gun, is calculated to produce death.
    2. The fact that the gun was so loaded may be proved by either direct or • circumstantial evidence.
    8. ’Where, during an angry and violent altercation between the prisoner and the prosecuting witness, the former threatened to shoot the latter, and immediately thereafter procured a gun and discharged it at the latter, it is error for the court to charge the jury, that from this threat alone, they might infer that the gun was loaded.
    Ekeoe to tbe court of Common Pleas of Columbiana county.
    Plaintiff in error was convicted and sentenced under an indictment charging him that with a certain gun, loaded with powder and leaden balls, he shot at one Hiram Lamborn with intent to kill.
    The evidence tended to show that a violent and angry altercation was in progress between said Hiram and the plaintiff in error, during which the plaintiff in error threatened to shoot said Hiram, and immediately thereafter procured a gun and shot it off near to and at the person of said Hiram.
    Some evidence was given that the shot left powder marks on his face, but there was no evidence either positive or circumstantial that the gun was loaded with a leaden ball or other deadly missile, unless the previous threat to shoot said Lam-born raised a presumption that the gun was so loaded.

      At the conclusion.of the evidence, counsel for plaintiff in error requested the following charge, to wit:
    “If the evidence given in the case has not satisfied you beyond a reasonable doubt that the gun that the defendant is charged to have shot off at the time, and in the manner charged in the indictment, was not loaded with powder and leaden balls, then your verdict should be for the defendant; that is, that he is not guilty of shooting with intent to kill or wound the said Hiram Lamborn.”
    Which charge the court refused to give save as given in the charge below, to which refusal the defendant, by his counsel, at the time excepted; but the court did give on said point the following charge, to wit:

      “ Gentlemen: Before you can find the defendant guilty 'of shooting with intent to kill as charged in the first count of the indictment, or of shooting with intent to wound as charged in the second count of the indictment, you must find from the evidence in the case, and beyond a reasonable doubt, that the gun spoken of in the indictment, with which said Jackson Fastbinder is charged in the indictment with having unlawfully, maliciously and purposely shot at Hiram Lamborn, was then loaded with powder and leaden balls; and unless the proof shows this beyond a reasonable doubt, you must find the defendant not guilty on either of said counts. But that you may so find that said gun was so loaded with powder and leaden balls, it is not necessary that this should be proven by positive evidence. It will be enough to establish this point if all the circumstances of the case should satisfy you beyond a reasonable doubt that said gun was so loaded with powder and leaden balls. If you find from the evidence that said Jackson Fastbinder then said that he would shoot said Hiram Lamborn, and got the gun and did shoot it off at him, you have a right to take him at his own word and to infer and find that he had the means to carry out his threat, and that said gun was at that time loaded with powder and leaden balls, if you see proper.”
    To which charge, as given, the plaintiff in error excepted.

      The motion for a new trial was overruled and the plaintiff was sentenced to the penitentiary upon the verdict.
    Error is now prosecuted to reverse this judgment.

      J. W. Morrison, for plaintiff in error :
    1. The charge of the court in reference to Fastbinder saying that he would shoot Lamborn, was wrong.' Innocence is presumed. 1 Greenleaf on Ev. (13th Ed) § 13 a; Fuller v. State, 12 Ohio St. 433; Roscoe’s Or. Ev. (7th Ed.) 15.
    2. It should have been averred and proven that the gun was loaded with powder and leaden ball. Roscoe’s Grim. Ev. (7th Ed.) 15 ; 2 Bishop on Grim. Pro. (2d Ed.) 359, § 652 note 2.

      James Lawrence, Attorney General, and Ii. W. Taylor, prosecuting attorney, for defendant in error:
    I. When a gun is discharged, with all the outward indications of a deadly intent, the presumption is that it is loaded in the manner necessary to accomplish the usual and natural purpose of such a weapon. The burden of showing the contrary is on him who thus uses it.
    This rule implies no hardship and imposes no burden upon the defendant which he cannot easily remove. To negative it, imposes a burden upon the state which is unjust and unfair, and makes theffailure of the death-intending marksman to hit his mark, a sure and safe refuge against the claim that he has committed a felony. '
    II. This verdict can be sustained even though no proof was made that the gun was loaded with powder and ball. It is clear that it was loaded with powder and wadding. Rex v. Kitchen, Russell & Ryan’s Or. Oas. 75; Henry v. State, 18 Ohio,. 32.
   Johnson, C. J.

We need not notice the refusal to charge as requested, for the reason that ihe charge as given is a statement of the same proposition, with an additional instruction to be noticed.

The charge as given, after stating that it was the duty of the state to make out beyond reasonable doubt that the gun was loaded with powder and leaden balls, and that unless the proof showed this fact they must find the defendant not guilty, then added But that you may so find the gun was so loaded with powder and leaden balls it is not necessary that it should be proven by positive evidence; it will be enough to establish this point if all the circumstances of the case should satisfy you beyond a reasonable doubt that said gun was so loaded with powder and leaden balls.

“ If you find from the evidence that said Jackson Fastbinder then said he would shoot said Hiram Lamborn, and got the gun and did shoot it off at him, you have a right to take him at his own word, and to infer and find that he had the means to carry out this threat and that said gun was at the time loaded with powder and leaden balls, if you see proper.”

To the last clause of this charge objection is made.

That it is objectionable is clear to the minds of a majority of this court.

After correctly stating that it was the duty of the jury to find the gun was so loaded and that this might be done upon positive or circumstantial evidence, they are told that they might convict, if they saw proper, by inferring from the previous threat, made to shoot, that the gun was so loaded. In other words, they might be satisfied beyond a reasonable doubt that the gun was loaded with a leaden ball because Ihe plaintiff in error threatened to shoot Hiram Lamborn and immediately thereafter got the gun and shot it off at him.

We do not think this threat to shoot, followed by shooting the gun off, is sufficient, to satisfy the jury, beyond reasonable doubt, that the gun was loaded with a bullet or other deadly missile; and it seems to us that to draw such an inference from a mere threat in the heat of an augry and violent altercation, in which each was trying to overdo the other, is unwarranted. Indeed, the very violence of this altercation and the close proximity of the parties at the time of the shooting and the failure to make the threat to shoot him effective, though there was ample opportunity, if he had intended to kill him, would lead to tlie equally'reasonable inference, that it was an idle threat rather than a serious one.

Be this as it may, and while this threat may be properly regarded as a circumstance tending to show an intention to take life, yet it is insufficient to satisfy the jury beyond a reasonable doubt of this material allegation.

It is not a circumstance from which the jury could necessarily infer that the gun was loaded.

The legal presumption of innocence can be overcome only by full proof as will exclude all reasonable doubt of the guilt of the accused, and where a criminal charge is to be proved by circumstantial evidence the proof ought to be not only consistent with the prisoner’s guilt, but inconsistent with any other rational conclusion.

From the circumstances developed in the evidence, it would not be irrational to infer that the threat and the shooting were intended to frighten away from his premises those who were making an attack upon him. Under such circumstances we think it the duty of the state to have shown to the satisfaction of the jury that the charge in the indictment as to the manner in which the gun was loaded must be established either by positive or circumstantial evidence, otherwise the defendant should be acquitted, 2 Bishop’s Criminal Procedure, § 652, note 2; 1 Archbald Cr. Pl. & Ev. 885, 887, note 890, and notes; Weston’s case, 1 Leach, 247.

Judgment reversed.

McIlvaiNE, J., dissented.