author: Johnson, J.

text:
    Gilbert v. Gilbert et al.

      Wife enters appearance in divorce proceedings — In court of another state — Bound by decree of foreign court, when — Cannot after-wards maintain action in this state, when — Question of recovery in one state — Of unpaid alimony decreed in another state.

    1. Where a wife enters her appearance in a proceeding against her for divorce, in a court of another state, and asks for and is granted alimony in said proceeding, having set up therein, her rights under a prior decree for alimony payable in installments in a suit for alimony alone in a court of this 'state, she is bound by the decree of the foreign court and cannot afterwards maintain an action in this state to recover the unpaid installments under the prior decree.
    2. A decree for alimony payable in installments in a suit for alimony alone in one state will not support an action as on a final judgment for a fixed sum in another state. ’
    (No. 12311
    Decided February 14, 1911.)
    Error to the Circuit Court of Cuyahoga county.

      Nellie A. Gilbert brought suit against Frederick G. Gilbert in the court of common pleas of Cuyahoga county, and in her petition avers, that in June, 1899, the court of common' pleas of Cuyahoga county on her petition against said Frederick G. Gilbert, decreed that said defendant should pay her as alimony, seven ($7.00) dollars a week, and that in February, 1901, in the same case, said defendant was adjudged to pay her as alimony $50.00 per month for and during the natural life of plaintiff, and avers that said order remains in full force and effect as a valid and subsisting judgment; that only $80.00 has been paid on the judgment and that defendant in 1901 left the state of Ohio, and went to South Dakota. She further avers that defendant is not the owner of any property subject to levy, but that 'in 1903 he became the owner of an estate in certain property left by his father. The property is described and the petition prays that same may be ordered sold and proceeds applied in payment of plaintiff’s judgment with interest.
    To this petition Frederick G. Gilbert, in an amended answer and cross-petition, avers that on April 15, 1899, plaintiff was his wife, and on that day began suit against him for alimony alone; that afterwards the court made a weekly allowance to plaintiff; that in October, 1899,'he left Ohio and went to the state of South Dakota, took up his permanent residence and has ever since resided there.
    That in February, 1901, the court on default of defendant and in his absence entered an order requiring him to pay plaintiff the sum of $50.00 per month for and during her natural life and gave judgment for costs alone against him.
    The defendant paid $90.00 for alimony pendente lite and no more. He admits that the property described is held for him, but subject to a prior lien, and admits that the lands exceed in value plaintiff’s claim set forth in the petition and denies all the other allegations of the' petition.
    Defendant further alleges that in May, 1903, he began an action for-divorce against plaintiff in the seventh judicial circuit court of South Dakota in and for the county of Pennington; that personal service of summons and copy of the complaint in said court was made on Nellie A. Gilbert on May 25, 1903, at Cleveland, Ohio, and due service by publication was also made on her according to the laws of South Dakota; that on October 10, 1903, said- action came on to be heard and this plaintiff voluntarily appeared there in court in person and by her attorneys, and that the court heard the evidence adduced by the parties and on October 17, 1903, made and filed its findings of facts and conclusions of' law; that on said day the court granted him an absolute divorce, and this plaintiff, Nellie A. Gilbert, voluntarily asked for and was allowed permanent alimony to be paid her by this defendant until the further order of the court in the sum of $30.00 per month.
    That in said cause this plaintiff applied for permanent alimony and submitted to said court the whole question of alimony and presented to said court for its consideration, “in making final decision of the rights of the parties therein on the question of alimony, the orders and doings of-this court as well as all other claims that plaintiff herein had or claimed to have against defendant herein. That by the terms of the decree in said cause the allowance of alimony therein was adjudged to be in lieu of and in full “satisfaction of all other allowance, claims and demands in favor of her against him.”
    That also on application of this plaintiff he was by said court ordered to pay plaintiff’s attorneys $100.00 for services, which he did.
    That said decree is in full force and unreversed and that by reason of the premises she is now estopped from asserting any claim on the order on which this action is based. The answer further alleges that said circuit court in and for the county of Pennington, South Dakota, is a court of general jurisdiction with full and complete jurisdiction of the subject-matter and of the persons, parties to said action.
    The cross-petition prays that the original decree set up in the petition herein be vacated and held for naught.
    A demurrer filed by plaintiff to this answer and cross-petition was sustained and defendant not desiring to plead further a decree was entered for plaintiff for $6,960.83, and an order to sell the real property.
    This decree was affirmed by the circuit court, and error is prosecuted to reverse both judgments.

      Mr. J. P. Dawley and Mr. Frank A. Beecher, for plaintiff in error.

      Mr. W. D. McTighe and Mr. F. R. Marvin, for defendant in error.
   Johnson, J.

We think the amended answer stated a good defense and that the demurrer filed by plaintiffs should have been overruled. Mrs. Gilbert appeared in person and with counsel in the case in South Dakota. She filed her answer in .that case, resisted the application for divorce and prayed for the allowance of permanent alimony. By these acts she voluntarily submitted herself to the jurisdiction of the South Dakota court, consented to and invoked the consideration and adjudication by that court of all the marital rights and relations between the parties, and is bound by its decree.

The original proceeding in Cuyahoga county was for alimony alone, while that in South Dakota, as'finally submitted, is one for divorce and alimony. And in considering the original decree in Cuyahoga county in connection with that in South Dakota, it must be noted that alimony in a suit for alimony alone is different from alimony in a suit where there is a decree for alimony and divorce. In rendering a decree for alimony alone the court necessarily has in view that the marital contract still exists; that the parties are still bound by all its mutual obligations; that they may become reconciled and that the grounds and the desire for the allowance may be wiped out at any time. A decree in such a case is continually subject to modification, while in rendering a decree for divorce and alimony the court determines the ultimate relation of the parties and fixes the amount and the mode of payment of any money pr property allowance to the wifo. And when there is a divorce in a proceeding in which the wife is in court asserting her rights and asking for affirmative relief, she is concluded by the decree in that proceeding. Julier v. Julier, 62 Ohio St., 90; Hunt v. Hunt, 72 N. Y., 217; 14 Cyc., 820; Lynde v. Lynde, 181 U. S., 183.

In Weidman v. Weidman, 57 Ohio St., 101, it is held: “Where a wife obtains a divorce from her husband in this state without a decree for alimony, he being personally served with process, she cannot thereafter maintain a separate action against him for alimony.” At page 104 of the opinion the court say: “When both parties have their day in court in the divorce proceedings, and permit the marriage contract to be severed, without at the same time having their property rights growing out of such contract and relation,adjusted, it will be held that they have conclusively waived and' withdrawn the consideration of that question from the court, and neither of them can thereafter be heard in aid of an adjudication as to such property, or as to such property rights.”

It follows, of course, that if alimony claims are adjusted in the decree in such a proceeding the parties are equally bound.

It is contended on behalf of Mrs. Gilbert that the court in South Dakota should have accepted the order in Cuyahoga county as conclusive on it and should have given it the same force as a judgment of another state is entitled to. This contention is not sound. A money decree for alimony is not a judgment in the full legal meaning of the term. It is not a provable claim under the bankruptcy statute. It does not become dormant because of failure to issue execution on it for more than five years. Lemert v. Lemert, 72 Ohio St., 364; State, on Complaint of Cook, v. Cook, 66 Ohio St., 566.

An order or decree for alimony payable in installments where there is no decree for divorce is subject to be modified, changed or terminated by the future action of the court, having before it the parties themselves and all of the facts and the then existing circumstances. Olney v. Watts, 43 Ohio St., 499; Myers v. Myers, 3 N. P., 162; Sargent v. Sargent, 8 N. P., 238.

An order for alimony payable in installments made in a divorce action in one state, subject under the laws, of that state to modification, will not support an action as on a judgment in another state, as the same is not a final judgment for a fixed sum. Lynde v. Lynde, 162 N. Y., 405, Bleuer v. Bleuer, 27 Okla., 25. Inasmuch as it is well settled that the original order for alimony which was entered in favor of Mrs. Gilbert in Cuyahoga county was not a judgment within the strict meaning of the term, but was such an order as was continually subject to modification, and inasmuch as Mrs. Gilbert elected to submit all her rights under said order and any other claims or demands which she had against her husband to the court in South Dakota, she is now estopped and will not be heard to again assert in this state any of the rights she may have had under the original decree, which was so determined by the court in South Dakota. Petersine v. Thomas, 28 Ohio St., 596: Patton v. Loughridge, 49 Ia., 218; Babcock & Co. v. Camp, 12 Ohio St., 11; Fischli v. Fischli, 1 Blackf., 360.

The presumption is that the court in South Dakota having before it as part of the case the original decree in Cuyahoga county, with -full information as to the conduct of the parties since that decree as well as other circumstances proper to be considered under the pleadings in that case, entered such a decree as was justified, and that that court gave such force and credit to the Cuyahoga county decree as such a decree was entitled to, in connection with all the other circumstances.

We think the judgment of the courts below should be reversed.

Judgment reversed.

- Spear, C. J., Davis, Shauck, Price and Donahue, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    McGarvey v. The Detroit, Toledo & Ironton Railway Co.

      Duty of railroad, company — To equip cars with automatic couplers — Act of March ig, igoó — Company liable to employe — For worn or defective couplers — Employe does not assume risk, when— Liability of employer.

    1. By virtue of Section two of an act entitled: “An act to promote the safety of employes and travelers upon railroads,” etc., passed by the general assembly of Ohio, March 19, 1906 (98 O. L., 75), it is the positive duty of a railway company to equip cars being used in moving state traffic, “with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars,” and the use of such cars without the required equipment is unlawful.
    2. It 'is the duty of the railway company engaged in moving state traffic to exercise ordinary care to keep the said couplers in working order so as to accomplish the object of said enactment and promote the safety of employes engaged in causing such cars to be coupled’.

      3. Where an employe of a railway company, whose duty is to cause cars in use by said company in moving state traffic to be coupled, and which cars are not equipped with couplers coupling automatically by impact, as required by said Section two, is killed or injured in attempting to cause said cars to be coupled, the railway company is liable in damages for a violation of said section, and, according to Section seven of said act, the employe is not deemed to have assumed the risk occasioned by the neglect of the company; nor shall he be held to have contributed to his death or injury where the company has violated the provisions of said Section two, which violation contributed to the death or injury of such employe.
    4. Where a railway company uses cars in moving state traffic, which are equipped with couplers intended, when installed, to couple automatically by impact, but from long use or other cause, they have become defective, worn and have such lateral play that they will not couple automatically by impact, and, to effect the coupling, it became necessary for the employe to go between the cars to assist in making the same, and he is injured while so engaged because of the worn and defective couplers, he may recover for the injury so caused.
    (No. 12178
    Decided February 14, 1911.)
    Error to the Circuit Court of Lawrence county.
    The defendant below and defendant in error here, is a railroad corporation organized under the laws of the state of Michigan.' Its line of railroad extends from Ironton, Ohio, through various counties thereof and into Michigan, terminating at Detroit.
    While the company so organized was operating said line of railroad, and about the 11th day of December, 1906, the plaintiff in error, «who was employed and acting as a yard foreman for the company in its yards at the city of Ironton, was injured in attempting to couple two freight cars which were imperfectly equipped with automatic couplers. It is alleged the coupler was out of repair, worn, and loose' on the carrier irons, so that in attempting to couple onto a car of a train of thirteen being pushed in on the siding, to a standing car, he was obliged to go between •the cars and with his foot push over one draw bar, so it would meet the other and effect a coupling, and that his right leg was caught between the draw-heads and crushed ' so as to require amputation. His petition is lengthy in stating his cause of action and the facts upon Avhich he asks to recover a judgment for damages against the company.

      Without quoting largely from the petition, or attempting to give its substance, we adopt the( brief summary made in the brief for plaintiff in error, where it is said the negligence charged was:
    1. That the defendant negligently constructed and maintained its side-track on such an acute curve that it was necessary to have many empty cars to reach around the curve (the curve being so acute that a locomotive could not pass around it) in order to do or perform the switching of cars on this siding, the curve being so acute that it would not permit the cars to couple automatically.
    2. That the car couplers were defective, out of order, and would not couple automatically by impact.
    3. That the side-track was out of repair, ties rotten and rails uneven.
    4. That defendant caused and directed the plaintiff to work with only two brakemen as assistants, when, on account of the nature of said curve and number of the cars, there should have been three to assist him.
    The particular event is thus stated: “By reason of the facts hereinbefore set out, the draw-bars were not coming together as they should and would if the car had been in working condition, and plaintiff attempted to adjust and push over with his right foot the draw-bar on the standing car so that it would come into position to automatically couple with the car that was being headed in against it, and the draw-bar, by reason of being loose and worn, shoved over too far, and plaintiff’s foot slipped o.ff the draw-head that he had pushed, coming back, and the draw-head of the car headed in caught plaintiff’s right foot or leg and so crushed it * * * that it had to be amputated.” It is averred that the agents of the company had knowledge of the conditions complained of and that plaintiff was without such knowledge or means of knowledge.
    It is further averred that the cars being handled and which produced the injury were being used in both interstate and intrastate commerce.
    The railway company answered the petition, in which answer the corporate capacity of the company and its alleged line of railroad are admitted; that plaintiff was employed and was performing service as he alleges on a train of thirteen cars attached to an engine, which were being hándled on the siding; that plaintiff in and about making the coupling let his foot slip and the same was caught between the cars and injured as alleged. The answer admits that the cars being switched were engaged in interstate commerce, but not in intrastate commerce. All negligence alleged against it, the company denied. In a second defense, the defendant alleges that plaintiff was familiar with the curve, condition of ties and rails and all the conditions of the yards and this siding and the manner of switching cars around said curve and elsewhere, and being a man of railroad experience, was apprised of the risk to be assumed in working there, and which risk he assumed.
    A third defense reasserts some of the facts contained in the second, and pleads contributory negligence.

      The affirmative allegations of the answer are denied by a reply.
    A trial was had to a jury. At the close of plaintiff’s evidence, the defendant asked the court to direct a verdict in its favor, and renewed the motion at the end of all the evidence. Both motions were overruled.
    Before the argument, the court took from the consideration of the jury all averments of negligence made in the petition, except such as relate to three grounds. The court charged the jury thus: “The court has concluded to withdraw from your consideration in this case all claims of negligence made by the plaintiff against the defendant, except three. These are:
    “First. That by reason of an acute curve in the switch upon which this plaintiff, received his injury, the draw-bars would not couple automatically as it was intended they should.
    “Second. That the draw-bars on the cars to be coupled were out of repair and worked loosely on the carrier-irons, and the couplings were in such condition that they would not automatically couple.
    “Third. That the track was out of repair and uneven, the rails not properly held together; the ties rotten so that cars could not come together in proper position to couple automatically.”
    The defendant requested the- court to charge sixteen propositions, some of which were given, but refused the 5th, 6th, 8th, ,10th, 13th, 14th, 15th and 16th. Exception was taken to the refusal to give these charges, and they will be noticed in the opinion. The jury rendered a general verdict for the plaintiff, and answered several interrogatories submitted by the court.
    The general verdict was for the plaintiff in the sum of $7,500, for which .sum the court rendered judgment. The case was taken to the circuit court where the judgment of the court of common pleas was reversed.
    The plaintiff prosecutes error here to reverse the decision of the circuit court.

      Mr. A. R. Johnson; Mr. Dan C. Jones and Mr. William J. Meyer, for plaintiff in error.
    The law in Ohio has always been that the railway company could not contract against its own negligence, or the negligence of the person in charge or control, and before this statute took effect, April 4, 1906 (98 O. L., 75), the only defense the railway company had, was that it had used ordinary care in its equipment of couplers. Railroad Co. v: Keary, 3 Ohio St., 202; Railroad Co. v. Spangler, 44 Ohio St., 479; Coal & Mining Co. v. Admr. of Clay, 51 Ohio St., 556; State v. Railway Co., 68 Ohio St., 36; Garrison v. Railway Co., 3 O. L. R., 134.
    The legislature not only had authority under the police power of the state to pass this law, prescribing that automatic couplers coupling by impact, should be used on any car in Ohio, doing interstate business in Ohio, but had equal authority to fix upon the railroads the absolute duty to see that automatic car couplers were in such condition as they would couple automatically by impact, and likewise had authority to prescribe that the employe should not assume the risk by reason of his knowledge that the railway company had failed to comply with the law in this regard, nor that such employe, in law, should be guilty of contributory negligence, if the failure of railway company to supply automatic couplers coupling by impact, contributed in any degree to the injury of employe. Pearsall v. Railway Co., 161 U. S., 646; Phillips v. State, 77 Ohio St., 214; 23 Am. & Eng. Ency. Law (2 ed.), 729 ; 26 Cyc., 1079; 3 Elliott on Railroads, Sec. 1315; Railroad Co. v. Roberson, 61 Fed. Rep., 592; Railroad Co. v. Simpson, 131 Fed. Rep., 705; Green v. Car Co., 163 Ind., 135; Railroad Co. v. Fippo, 138 Ala., 487; Krause v. Morgan, 53 Ohio St., 26.
    This duty on the railway company is an absolute and unqualified one, and it is important to know the construction placed upon the act of Congress of March 2, 1893, as the Ohio act is taken from it. Railway Co. v. Taylor, Admx., 210 U. S., 281; Schlemmer v. Railway Co., 205 U. S., 1; Johnson v. Railway Co., 196 U. S., 1; Railway Co. v. Voelker, 129 Fed. Rep., 522; Voelker v. Railway Co., 116 Fed. Rep., 867; United States v. Railway Co., 150 Fed. Rep., 229; United States v. So. Pac. Co., 154 Fed. Rep., 897; United States v. Railway Co., 167 Fed. Rep., 696; United States v. Railroad Co., 170 Fed. Rep., 456; Railway Co. v. United States, 170 Fed. Rep., 556; United States v. Railway Co., 170 Fed. Rep., 1014; United States v. Railroad Co., 166 Fed. Rep., 352; Railway Co. v. King, 169 Fed. Rep., 372; United States v. So. Pac. Co., 169 Fed. Rep., 407; Railroad Co. v. United States, 168 Fed. Rep., 175; United

      States v. Railway Co., 163 Fed. Rep., 517; United States v. Railway Co., 174 Fed. Rep., 684.
    Thus far we have shown the holdings of the United States courts upon this provision. Different supreme courts of our states have passed upon the same identical question. For instance, North Carolina: Coley v. Railroad Co., 128 N. Car., 534; Coley v. Railroad. Co., 129 N. Car., 407; Greenlee v. Railway Co., 122 N. Car., 977; Thomas v. Railroad Co., 129 N. Car., 392; Cogdell v. Railway Co., 129 N. Car., 398; Mott v. Railway Co., 131 N. Car., 234. South Carolina: Youngblood v. Railroad Co., 60 S. Car., 9; Bodie v. Railway Co., 61 S. Car., 468; Carson v. Railway Co., 68 S. Car., 55. Delaware: Railway Co. v. Winkler, 4 Pennewill, 387.
    The construction placed by the Federal courts upon the act of Congress of March 2, 1893, the words as well as the purpose and meaning of them being adopted and enacted into law by the legislature of the state of Ohio, on March 19, 1906, control the meaning of the Ohio act, if there is any doubt or uncertainty about its meaning. 2 Lewis’ Sutherland Stat. Con. (2 ed.), Sec. 404; Harrison v. Sager, 27 Mich., 476; Daniels v. Clegg, 28 Mich., 32; Greiner v. Klein, 28 Mich., 12; Attorney-General v. Brunst, 3 Wis., 787; Estate of Pike, Kimball’s Appeal, 45 Wis., 391; Cole v. Bentley, 26 Ill. App., 260; Glaubensklee v. Low, 29 Ill. App., 408; Requa v. Graham, 86 Ill. App., 566; Hudson v. King Bros., 23 Ill. App., 118; Lewis v. Lynch, 61 Ill. App., 118; Lewis v. Lynch, 61 Ill. App., 476; Commonwealth v. Harnett, 3 Gray (Mass.), 450;
      Pratt v. Telephone Co., 141 Mass., 225; Ryalls v. Mechanics’ Mills, 150 Mass., 190; City of Laporte v. Telegraph Co., 146 Ind., 466; Nelson v. Stull, 65 Kans., 585; Pratt v. Miller, 109 Mo., 78; State v. Holmes, 115 Mich., 456; Stellwagen v. Probate Judge, 130 Mich., 166; Willis v. Trust & Banking Co., 169 U. S., 295; James v. Appel, 192 U. S., 129; State, ex rel., v. McBride, 64 Neb., 549; Everding v. McGinn, 23 Ore., 15; In re O’Connor, 21 R. I., 465; Railway Co. v. Baggage Co., 99 Va., 111; Pomeroy v. Pomeroy, 93 Wis., 262; Morgan v. State, 51 Neb., 672; Morgan v. Davenport, 60 Tex., 230; Hess v. Pegg, 7 Nevada, 23; Marqueze v. Caldwell, 48 Miss., 23; People v. Irvin, 21 Wend., 128; Railway Co. v. Mooney, 40 Fla., 17; Mining Co. v. Ore Co., 25 Mont., 41; Reymond v. Newcomb, 10 N. Mex., 151; Barnes v. Lynch, 9 Olda., 156; People v. Ritchie, 12 Utah, 180; Favorite v. Booher, 17 Ohio St., 548; Ives v. McNicoll, 59 Ohio St., 402; Paine, Kendall & Co. v. Mason, 7 Ohio St., 199; Gale v. Priddy, 66 Ohio St., 400; Brice v. Myers, 5 Ohio, 124; Reed v. Evans, 17 Ohio 128; Hilliard v. Coal Co., 41 Ohio St., 668; State v. Bovee, 6 N. P., N. S., 337; Runck v. Cloud, 8 N. P., 437.
    But independent of any construction of this act, how would the courts of Ohio construe it? They must look to the evil sought to be remedied. The remedy must appear from the language used in the statute. If the meaning of the words used is plain, definite and certain, the court simply follows their meaning. They are not subject to construction unless of a doubtful meaning. Manuel v. Manuel, 13 Ohio St., 464; Slingluff v. Weaver, 66 Ohio St., 621; State v. Borham, 72 Ohio St., 363; Beverstock v. Board of Education, 75 Ohio St., 144; Johnson v. Railway Co., 196 U. S., 1; United States v. Lacher, 134 U. S., 624; Railway Co. v. Simmons, 105 Va., 651.
    As to the construction generally, of such laws, see: United States v. Wiltberger, 5 Wheat., 76; Taylor v. United States, 3 How., 197; United States v. Hodson, 10 Wall., 395; Smythe v. Fiske, 23 Wall., 374; United States v. Stowell, 133 U. S., 12; Gray v. Bennett, 3 Metc. (Mass.), 522.

      Mr. L. K. Cooper, for defendant in error.
    Proof of the fact that the cars were engaged in interstate commerce being dispensed with, the railway company offered no evidence upon the proposition, it being admitted in the pleadings that the cars were engaged in interstate commerce, and the attorney for plaintiff having asked to show that the cars were rebilled from Wauseon, Ohio, to Westfield, N. Y., we presume it will not be disputed by anyone that for the purposes, of this case we may conclusively say that the cars were engaged in interstate traffic. Whether they were engaged also . in intrastate traffic is not shown by the evidence, and that fact is immaterial in any event since it' is expressly provided by the act (98 O. L., 75) that nothing therein contained “shall apply to * * * cars * * * or trains, while any of which are in actual use in interstate commerce.”
    Therefore, the Ohio safety appliance act (98 O. L., 75) is not applicable to this case, and there can be no question but that the trial court erred, in taking from the jury the question of assumption of the risk, erred in the refusal of various charges requested by the defendant and erred in the other matters hereinbefore set out.
    [Counsel for defendant in error then considers their claim that the court of common pleas erred in its refusal to give certain special charges before the argument; that the trial court erred in its general charge to the jury; that the court erred in its refusal to submit to the jury special interrogatories ; and considers the proposition of. the plaintiff in error that the assumption of the risk is not properly pleaded in the amended answer. — Reporter.]
   Price, J.

As to the manner in which plaintiff in error received his injury in the yards of the railway company at Ironton at the time "alleged, there is but little, if any, controversy. In our statement of the case is found a clear description of the situation of the cars to be coupled, and the plaintiff's relation thereto as he was about to make the coupling, as well as his conduct in attempting to make it, when his leg was caught and crushed between the draw-heads or draw-bars. The answer does not controvert the accuracy of the description given of the manner in which the plaintiff was injured, nor the extent of the injury, but it does controvert the allegations of the petition as to the negligence of the company and its responsibility for causing such injury.

After the trial court had eliminated from the casé all allegations of negligence save the three stated to the jury, found in our statement, it further said to the jury: “These are the three grounds of negligence which the court takes from -the petition in this case to be submitted to you for your determination, as claimed by the plaintiff, and you will observe that all of these three various grounds of negligence relate to the matter of the coupling of these cars.”

This instruction was proper, under the law and the evidence, and limited the consideration of the jury to the vital questions in the case, as it then was evident that it would turn on the construction and applicability of an act of our general assembly entitled: “An act to promote the safety of employees and travelers upon railroads,” etc., passed March 19, 1906. This statute will be more fully noticed later in this opinion.

On the three grounds of negligence submitted to the jury, one or all, the general verdict found for the plaintiff.

At the request of the company, the court submitted certain interrogatories to be answered by the jury in case it returned a general verdict. These and the answers thereto are as follows:

“1. Do you find from the evidence that any defect which wholly or partially caused the injury complained of in the petition, existed in the defendant's track? Ans. Yes.

“2. Did defendant, or any of its officers or agents, prior to said accident, know of such alleged defect, or could they or either of them by the exercise of ordinary care have known of the same, and if so which officer or agent ? Ans. Yes, the yard-master.

“3. From the evidence, what defect, if any, wholly or partially causing said injury, do you find existed at the time of the accident in said cars between which plaintiff claims to have been injured, or either of said cars, or their appliances?. Ans. The couplings.

“9. Do you find that the injury complained of by plaintiff in this case was caused by the combined negligence of plaintiff and defendant? Ans. No.

“10. If you find the defendant company guilty of any acts' of negligence, or omissions of duty in any regard, wholly or partially causing this accident, state fully all of said acts of negligence and omissions of duty. Ans. Defective track; defective couplings; the acute curve.

“11. Do you find that plaintiff himself was guilty of any negligence which directly contributed to his injury? Ans. No.”

These answers are consistent with the general verdict, and if the law was properly administered in the conduct of the trial and in the instructions given the jury, the pathway to recovery seems free of obstruction.

But the company claims that the evidence of plaintiff raises a presumption that he was negligent in going between the cars to make the coupling, knowing there was an automatic coupler on the two cars, and in using his foot to push one of the draw-bars so that it would come in proper place to effect the coupling, and that this presumption was not afterwards rebutted. And, further, his contributory negligence is affirmatively pleaded in the answer. It is further said in the answer, in substance, that the plaintiff was familiar with the tracks, curve and kind of cars to be handled, and was experienced in the work of coupling and uncoupling cars at that place in the yards, and assumed the risk of the service under those circumstances.

Evidence was introduced tending to support these alleged defenses, and the company desired certain jury instructions on the facts which it had presented on these subjects, which the court declined to give. Several of the instructions involved the law of contributory negligence sought to be applied in this case. The others relate to the assumption of the risk by the plaintiff in the performance of his work when injured.

We select, as samples, two requests as to contributory negligence, and one as to the assumption of the hazards, and each of which the court refused to give.

“8. The court instructs the jury that if they believe from the evidence that plaintiff was guilty of any negligence which contributed to the injury complained of, then the jury must find a verdict for the defendant, even though they may further believe that the plaintiff was injured by negligence as charged in the petition.”

“10. I charge you that if you should find-from the evidence that said cars complained of were not properly equipped with automatic couplers, or that said cars or- any or all of their appliances were defective, or that defendant was guilty of any or all the alleged acts of negligence charged in the petition, yet if the plaintiff by his own carelessness and negligence contributed to the injury which he. received, he cannot recover and your verdict must be for defendant.”

“15. Plaintiff in this case is presumed to assume the risk of injury which is incidental to the nature and character of the employment in which he is engaged, and against which the defendant could not, in the exercise of ordinary, care, have protected him, and if you find, that the injury complained of in this case was an ordinary peril of the service undertaken by plaintiff he cannot recover damages for such injury.”

Except for slight criticism of some of the language in which these requests are couched, they would be proper instructions as embracing the common law unaffected by legislation on the subject. But if the theretofore prevailing rules of the common law have been changed by the statutes of our state, relieving an injured employe from the effect of contributory negligence and assumption of the risk, the former rules will pot control.

Our general assembly has attempted to mitigate what it evidently considered the rigors and severity of such legal rules, and for that purpose passed the act already referred to in this opinion. The object of the statute, as stated in the title, was to promote the safety of employes and travelers upon railroads. See 98 O. L., 75. Among other provisions of the act is Section 2, which provides: “It shall be unlawful for any such common carrier to haul, or permit to be hauled or used on its line, any locomotive, car, tender, or similar vehicle used in moving state traffic, hot equipped with couplers coupling automatically by impact, and which can be uncoupled without the 'necessity of men going between the ends of the cars.” The next section authorizes the common carrier to refuse to receive from connecting lines or from any shipper, any car not equipped in accordance with the foregoing sections of the act. The sixth section prescribes a penalty for non-compliance with the act.

• Section seven provides, “that any employee of any such common carrier, who may be killed or injured by any locomotive, tender, car, or similar vehicle or train, in use contrary to the provisions of this act, shall not be deemed thereby to have assumed thc\ risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, tender, car, similar vehicle, or train had been brought to his knowledge; nor shall such employee be held to have contributed to his injury in any case where the carrier shall have violated any provision of this act, when such violation contributed to the death or injury of such employee.”

This statute was in force before and at the time of the injury sustained by the plaintiff, and it seems to supplant the rules of the common law as to assumption of the risk and contributory negligence by the employe of a railway company, where it is a common carrier, and it would seem that it was competent for the legislature to work this change.

It is not averred in the answer, or attempted to be proved, that plaintiff was guilty of gross and willful negligence intending to be killed or injured, and we are not called upon to consider or decide what the effect of such evidence would be, if introduced. The purpose of the statute is plain. It requires certain safety appliances to be adopted and used on all cars, etc., used in moving state traffic, and one of such appliances is an automatic coupler which will couple by the impact of the two cars to be coupled, and which can be uncoupled without the necessity of men going between the ends of the cars.

It has been suggested against the plaintiff that when he saw the coupler was out of order and not likely to work automatically by the impact, he should not have gone between the cars to assist in the coupling. But the plaintiff counters that argument or suggestion by saying it was necessary in order to complete the coupling that he push over one of the draw-bars; that he was ordered to do this switching promptly, and was in the discharge of duty when he did so. Evidently it was not a time for mature deliberation as to the best course of conduct, and we are inclined to think • that 'such cases are within the purview of the statute.

If this view of the statute is correct, the trial court did not err in refusing to charge the jury as requested by the company. To have done so would have been in the face of the statute. In the general charge, the court went to the very verge of conflict with the statute in its liberality to the contention made for the railway company. Our statute is very similar to the Federal statute on the same subject, as a comparison will show, except that the latter deals with carriers engaged in interstate commerce. The Federal statute has received judicial construction by the supreme court of the United States, in several cases, some of which are: Johnson v. Southern Pacific Co:, 196 U. S., 1; Schlemmer v. Railway Co., 205 U. S., 1; St. Louis, Iron Mountain, etc., Ry. Co. v. Taylor, Admx., 210 U. S., 281.

Federal courts inferior to the supreme court have also ruled as to the construction and scope of the same statute, as appears in Voelker v. Chicago, etc., Ry. Co., 116 Fed. Rep., 867; same parties in 129 Fed. Rep., 522; United States v. Southern Pacifc Co., 154 Fed. Rep., 897; United States v. Atchison, etc., Ry. Co., 167 Fed. Rep., 696; United States v. B. & O. Rd. Co., 170 Fed. Rep., 456; Chicago, etc., Ry. Co. v. United States, 170 Fed. Rep., 556. We may add other cases cited in brief of counsel. It is true that some of these were cases to enforce the statutory penalty, in some of which the railway company defended on the ground of having used ordinary care to comply with the act, but which was held to be no defense. The consensus of opinion to be gathered from all the cases that treat of our present question, is, that such a statute imposes a positive and absolute duty on the railway companies to furnish the appliances required, * and that neither the assumption of the risk bjr the employe, or his contributory negligence, affords a shield for the railway company, where death or injury results from a failure to comply with the statute.

In St. Louis, Iron. Mountain & Southern Ry. Co. v. Taylor, 210 U. S., 281, it was held, as one of the propositions decided, that “the Safety Appliance Act of March 2, 1893, supplants the common law rule of reasonable care on the part of the employer as to providing the appliances defined and specified therein, and imposes upon the interstate carriers an absolute duty;' and the common law rule of reasonable care is not a defense where in point of fact the cars used were not equipped with appliances complying with the standard' established by the act.” Some of the cases above cited also hold that equipping the cars with automatic couplers is not the whole duty of the carrier, but that such coupler must be kept in working order so as to couple by impact, and this is a reasonable requirement,. in order to accomplish the purposes of the statute, to secure the safety of employes.

The courts of last resort of several of the states have passed on similar statutes, and the cases are cited in the., briefs.

So we have here a case where the coupler was loose on the carriers, and instead of having play of one or two inches laterally, the testimony tends to show, that by reason of wear, the lateral play was four or five inches, and that the coupling could not be made on that acute curve without the plaintiff going between the cars to render personal assistance.

But it is said in the answer that the company, in the use of the cars where plaintiff was injured and when he was injured, was not moving state traffic but was engaged in interstate commerce, in such use of the cars, and therefore our statute does not apply to plaintiff’s case. This was a question of fact for the jury to decide, and as they were properly instructed on the subject, they have found against the company. If we look into the evidence, we find that there is evidence tending to support the finding, although it is not absolutely clear. Frank Peters, a witness for plaintiff, was called, who testified he was agent of the company at Ironton at date of the injury, and that the cars involved were loaded with cross-ties at Ironton and billed to Alexis on L. S. & M. S. railway, as billing point, but to Wauseon, Ohio, as the destination.

This being true, the cars were being used in moving state traffic and not engaged in interstate commerce.

On the facts, we believe the circuit court did not properly recognize the meaning of the enactment of pur g-eneral assembly and reversed the judgment of the court of common pleas on insufficient grounds. If the trial court was justified in refusing to give charges we have set out in this opinion, it was equally justified in refusing five, six and sixteen, for which the circuit court reversed the judgment. While this statute is in derogation of the common law, it should receive a reasonable construction to secure the safety of a large and useful class of our fellow men.

The judgment of the circuit court is reversed and that of the common pleas affirmed.

Reversed.

Spear, C. J., Davis, Siíauck, Joi-inson and Donahue, JJ., concur.


author: Shauck, J.

text:
    Wyler Ackerland & Company v. The Louisville & Nashville Railroad Company.

      Breach by a common carrier of obligation — To deliver merchandise in reasonable time — Shipper may recover as general damages— Decline in value of goods.

    In case of the breach by a common carrier of its obligation to deliver merchandise within a reasonable time, the shipper may recover as general damages, the decline in its market value between the times when it should have been and when it was delivered.
    (No. 12379
    Decided February 14, 1911.)
    Error to the Circuit Court of Hamilton county.
    Plaintiffs brought suit in the superior court of Cincinnati to recover damages resulting from the failure of the defendant to perform a contract for the carriage of merchandise delivered by the plaintiffs to it for shipment. Their petition alleged with much detail that on the third of March, 1906, they delivered to the defendant for transportation from Cincinnati, Ohio, to West Bend, Alabama, a case of clothing and advertising matter consigned to E. L. Long & Company, West Bend, the same being as the defendant well knew transported for the purpose of sale in market; that the defendant accepted the goods and undertook to carry them within a reasonable time to Mobile, Alabama, and there to deliver to the next connecting carrier, by which they should be transported to West Bend; that the defendant did not perform said contract but failed to deliver the goods at Mobile until the 18th of May, 1906; that if it had carried the goods without unreasonable delay they would have arrived at Mobile not later than the 25th of March, 1906; that owing to the unreasonable delay the consignee refused to receive the goods, whereupon they were returned by the carrier to the plaintiffs; that the decline in the value of the goods .between the dates when they should have been delivered and were delivered was $312, for which sum with interest from April 1, 1906, the plaintiffs ask judgment. To this petition the defendant filed a general demurrer. In the superior court the demurrer was sustained and a final judgment rendered dismissing the petition. That judgment was affirmed by the circuit court.

      Messrs. Moulinier, Bettman & Hunt, for plaintiffs in error.
    The petition states all facts necessary to constitute a cause of action against a common carrier for unreasonable and negligent delay in transportation. 6 Cyc., 515; Railway Co. v. Mudford, 44 Ark., 439; Raphael v. Pickford, 2 Dowl. Pr. C., N. S., 916.
    It is apparent that where the railroad company itself treats the consignor as the owner by returning the goods to him, and he accepts this treatment by crediting the carrier with the return of the g'oods, he has such an interest in the goods and cause of action as satisfies even those authorities that do not permit the consignor, qua consignor only, to sue. Railway Co. v. Guano Co., 103 Ga., 590.

      As regards the allegations of the delivery of the goods to the carrier, and the acceptance of them for transportation by,the carrier as a common carrier for hire, the petition is full and clear and can not cause and has not caused any contention. Railroad. Co. v. O’Donnell, 49 Ohio St., 489.
    Where, as in the case at bar, the negligent delay occurred on the line of the initial carrier, and the initial carrier, is sued, the damages are calculated by taking the difference between the two market values at destination, though the destination is on the line of the connecting carrier. Railway Co. v. Truskett, 104 Fed. Rep., 728; Railroad Co., v. Curtis, 80 Ill., 324; Ruppel v. Railway Co., 167 Pa. St., 166.
    The defendant contends that the petition shows on its face that the damage claimed is the result of a loss of market value due to the fact that the goods were designated to reach destination at a time of favorable market season; that such damage is not a direct and ordinary and general damage, but is in the nature of special damages, for which the carrier cannot be held liable unless it be given notice of such special circumstances.
    The defendant fails to distinguish between this general damages, always due to a change in market conditions, and the various forms of special damages due to circumstances special to each case. The distinction is clearly brought out in the recent case of Railroad Co. v. Canning Co., 116 S. W. Rep., 758.
    For further authority to the effect that depreciation in value due to loss of market is the regular general element of damage, independent of notice or knowledge: Cutting v. Railway Co., 13 Allen, 381; Railroad Co. v. Ragsdale, 46 Miss., 458; Railroad Co. v. Diffendal, 72 Atl. Rep., 193.

      Mr. Ellis G. Kinkead and Mr. H. K. Rogers, for defendant in error.
    The rule under which this case falls is the old one established by the leading case of Hadley v. Baxendale, 9 Exch., 341, frequently followed and affirmed in this state. It is, that when a contract is made under special circumstances, if those circumstances are communicated, the amount of the special injury which would ordinarily follow a breach of contract may be recovered as special damages that may reasonably be expected to result from such breach.
    In the case at bar there is no allegation of any damages other than those suffered from the fact that the goods' were of a special character such that they could be sold in a special market, neither the fact of the special character of the goods nor their destination for a particular market being communicated to the carrier. As a matter of fact, it is evident that for general purposes and for sale in general market it is not alleged that the goods deteriorated in any element of value because of the delay .alleged in the petition.
    It is difficult to see how in the absence of knowledge of the special circumstances alleged in the petition, the carrier could be presumed to know intuitively those special circumstances and to have rendered the kind of transportation service proper under the special circumstances not communicated to it. Ice Mfg. Co. v. Iron Works Co., 68 Ohio St., 229; Goodin & Goodin v. Railway Co., 125 Ga., 630; Devereux v. Buckley, 34 Ohio St., 16; Railway Co. v. Pettit & Kilgore, 3 Tex. Civ. App., 588.
    The case at bar is strongly analogous to those in which railroad companies were given scenery and goods of theatrical companies. Railroad Co. v. Byrne, 205 Ill., 22; Brown v. Weir, 88 N. Y. Supp., 479; Weston v. Railroad Co., 190 Mass., 298.
   Shauck, J.

The petition distinctly alleges that at the date named the plaintiff delivered merchandise to the defendant for carriage by it to Mobile; its acceptance for that purpose by the carrier; its undertaking to deliver the merchandise at Mobile within a reasonable time and the circumstances from which the law would infer that undertaking, a breach of its obligation by the carrier and the general damages resulting from such breach, being the decline in the market value of the merchandise between the date when the contract required it to be delivered and that of its actual delivery.

We are not favored with the opinion of either of the courts below, and we assume that the brief of counsel for the defendant presents the view which conducted them to the conclusion that the petition does not state a cause of action. That view is an elaboration, partly correct and partly erroneous, of the doctrine of Hadley v. Baxendale, 9 Exch., 341. That case is of admitted authority in this state, as frdm the clearness and force of its reasoning it deserves to be. It was there decided that the profits o£ a business, whose prosecution was suspended by the failure of the carrier to deliver a shaft within a reasonable time, could not be recovered because it could not be reasonably supposed that they were in contemplation of the parties at the time of making' the contract of carriage as the probable result of the breach of it. It was not decided, as it has been by the courts below in the present case, that general damages may not be recovered for such breach. That the loss incurred by the plaintiff, according to the allegations of the petition may be recovered as general damages, is held in Railroad Co. v. O’Donnell, 49 Ohio St., 489. To say that it may not be is to deny the legal character of the carrier’s obligation.

Judgments reversed.

Spear, C. J., Davis, Price, Johnson and Donai-iue, JJ., concur.


author: Spear, C. J.

text:
    Kroger, Admr., v. Ryan.

      Cumulative evidence — Is additional evidence of same kind — Will not sustain motion for new trial, zvhen — •New evidence, if competent, received, zvhen — Motion for new trial on ground of surprise — Mover must show use of due diligence against sur- . prise — Effect of negligence in ascertaining what witness could testify — Law of evidence.

    1. Cumulative evidence is additional evidence of the same kind to the same point. Therefore, where evidence offered on a motion for new trial is merely additional upon the same point upon which evidence was given by the party at the trial, such evidence will be rejected as cumulativé. But where the evidence thus offered is respecting a new and distinct fact, although it tends to establish the samé general result sought to be established by evidence given at the trial, such new evidence is not cumulative and, if otherwise competent, will be received.
    2. Where the ground for motion for new trial is surprise arising from the fact that the party’s witness testified upon the trial contrary to his expectation, the mover must show that he exercised proper diligence in the preparation of his case to prevent surprise, and also show that he used all means reasonably available to overcome the effect of the surprise. One of the means available is a motion addressed to the court for a continuance of the cause in order to afford the party opportunity to supply the evidence the failure to present which worked- the surprise.
    3. Where, upon the hearing of such a motion, it appeared that the mover failed to observe diligence in the preparation of his case for trial by neglecting to ascertain what his' witness really knew and could testify to, and also showed that the party did not at the time make known his surprise and ask for a continuance of the cause, but remained silent, letting the trial proceed, thus taking his chance of a favorable verdict upon the evidence as given, the motion was properly overruled.
    (No. 11526
    Decided February 14, 1911.)
    Error to the Circuit Court of Montgomery county.

      The plaintiff in error, as administrator of Katie Kroger, deceased, instituted an action in the court of common pleas of Montgomery against the defendant in error, Michael Ryan, a practicing physician residing in the city of Dayton, to recover for alleged malpractice on the part of the physician while attending said Katie Kroger during confinement, and afterward. The cause was tried at the November term, 1907, of that court, resulting in a verdict for the plaintiff of five hundred dollars. Motion for new trial was interposed, one of the grounds being accident and surprise on the part of the defendant at the trial. This motion was overruled and judgment entered on the verdict. On error prosecuted to the circuit court by the defendant, the judgment of the common pleas was reversed on the ground of error in overruling the motion for new trial, that court holding that the trial court should have sustained the motion on the ground of accident and surprise. The plaintiff seeks a reversal of the circuit courts’ judgment and an affirmance of that of the. common pleas. Further facts are stated in the opinion.

      Messrs. Mattern & Brumbaugh and Messrs. Jones & Routzohn, for plaintiff in error, discussed the question of surprise, and cited and commented upon the following authorities:

      Ferguson v. Gilbert & Rush, 16 Ohio St., 88; Hull v. Railway Co., 64 Minn., 402; Merrick v. Britton, 26 Ark., 496; Nelson v. Waters, 18 Ark., 570; Hill v. McKay, 36 Mont., 440; Railway Co. v. Vosburgh, 45 Ill., 312; Dewey v. Frank Bros. & Co., 62 Cal., 343; Carr v. Gale, Fed. Cas., 2433;
      Hoskins v. Hight, 95 Ala., 284; Schellhous v. Ball, 29 Cal., 608; Clifford v. Railroad Co., 12 Colo., 125; Flynt v. Taylor, 91 S. W. Rep., 864; Clemans v. Western, 39 Wash., 290; Railway Co. v. Johnson, 127 Ga., 393; Stites v. Admr. of McKibben, 2 Ohio St., 589; O’Conner v. Duff, 30 Mo., 595; Vose v. Mayo, Fed. Cas., 17009; Love v. Breedlove, 75 Tex., 649; Nehring v. Ricker, 126 Ill. App., 262.

      Mr. John W. Kreitser and Mr. Charles H. Kitmler, for defendant in error, discussed the question of degree of knowledge and skill required by physicians and surgeons, and cited and commented upon many authorities.
   Spear, C. J.

Additional facts necessary to an understanding of the points decided are, in substance, that on March 4, 1905, the defendant, Doctor Ryan, attended upon Mrs. Kroger who was on that day delivered of a child. Within thirty-six hours thereafter a fever developed, with chills and pains, indicating the presence of blood poison. The defendant being called treated the patient to relieve her of the septic condition, continuing such treatment until about March 20, following, when he ceased to attend expecting to be called if further needed. He did not attend further. Two days after, the patient having grown worse, a call was sent for the defendant, but he, being absent from the city, did not respond, and another physician (Doctor Foster) was called. This physician made an examination and, discovering a pus formation on the womb, treated the patient for that. Four days later, the patient not improving, another physician (Doctor Gray) was called in consultation. Under the advice of the two physicians the patient was removed to a hospital, and an operation there performed on April 10, following. Later a second operation was performed. On this occasion there were present and assisting, Doctors Gray and Humphreys of the hospital staff, Doctor Early, one of the internes, and Doctor Foster. Doctor Early reserved some of the pus for the purpose of microscopic examination. May 12, following, the patient died. Doctor Gray’s report to the city board of health ascribed her death to puerperal septicemia.

One of the grounds of the negligence charged being failure on the part of Doctor Ryan to exercise proper care and skill in not removing all of the placenta from the womb of the deceased while attending her.at childbirth, it became important for the defendant at the trial to show that the microscopic examination of the pus by Doctor Early indicated the presence of gonococci, and that this fact tended to establish that the patient had been infected with gonorrhea, which germs, if present, would explain the cause of the septic condition of the patient and rebut the claim that she had become infected by reason of the alleged negligence of the defendant in not removing the entire placenta. At the trial Doctor Ryan testified that he did remove the entire placenta and had not in any way been negligent. Doctors Gray and Humphreys were also witnesses. The defendant undertook to establish by them his claim with respect to the presence of gonococci in the pus as disclosed by the examination. Both witnesses answered that they could not testify to the presence of germs or the cause of infection because Doctor Early had conducted that examination and all they knew about it was what Doctor Early had told them. So the evidence tendered, being mere hearsay, was rejected. This exclusion of the testimony offered is the ground of the alleged surprise. Nothing was said by Doctor Ryan about his surprise, not even to his own counsel, and the trial proceeded . to verdict as before stated. Doctor Early appears not to have been within reach of a subpoena, having removed to the state Of Colorado.

Within due time, the defendant filed motion for new trial, and the" same was heard February 27, 1908. In support of his claim of accident and surprise the defendant introduced the affidavits of himself and of Doctors Early and Gray. The defendant in substance testified that he was surprised in the admission of evidence, especially the evidence of Doctor Gray, in that he was not permitted to testify to the fact, which defendant understood was within his personal knowledge, that the examination of the pus showed that it contained gonococci; that he relied upon Doctors Gray and Humphreys to prove that fact and in that way account for the infection, and relied upon what he believed to be within the personal knowledge of the physicians called; that he got his information from a conversation with Doctor Gray in which the latter told him that the patient was infected by gonococcus germs, as disclosed by the examination made by Doctor Early; that he was not told by either that he did not of his own knowledge know of the fact, and that he was completely taken by surprise at the trial, and thus prevented from obtaining the evidence, which ordinary prudence could not have avoided. Doctor Early’s affidavit contained the statement that he then resided at Denver, Colorado, and had so resided for two years; that he formerly lived at Dayton; that he was present as an interne of the St. Elizabeth Hospital at an operation April 12, 1905, on Mrs. Kroger for pelvic abscess and removal of the right ovary and Fallopian tube; that there was committed to him pus taken from the abscess for the purpose of making a microscopic and bacteriological examination, which he made, and found it to contain bacteria of gonococci to .such an extent as to convince him of the unmistakable cause of infection; that he made a report to Doctors Gray and Humphreys as to such finding, but had no communication of like import with Doctor Ryan at any time. Doctor Gray’s affidavit contained the statement that previous to the trial he had a conversation with Doctor Ryan with reference to the operation; that he then told the defendant of the infection of decedent, and that the examination made by Doctor Early disclosed the presence of gonococci; that he did not tell Doctor Ryan in so many words that he of his own personal knowledge, knew of the infection, or that he did not so know of it; that he believes that Doctor Ryan assumed and acted upon the mistaken assumption that affiant knew of his personal knowledge of the presence of gonococci in the pus and relied upon his testimony in that respect, and that affiant did not discover the error into which Doctor Ryan had been led by affiant’s remark until he was testifying as a witness at the trial.

Upon this presentation of evidence how stands the case? By his motion the defendant sought to take advantage of the provision of section 5305, Revised Statutes, which makes one ground for such motion “Accident or surprise, which ordinary prudence could not have guarded against.” To avail himself of this provision it was necessary for defendant to show that he exercised ordinary prudence and diligence in respect to the preparation of his defense, and in his effort to obtain relief from the prejudice created by the alleged surprise, and was not guilty of negligence in either respect. Does the evidence adduced at the hearing show such diligence? We think it does not. It would seem plain to any person of ordinary intelligence that the most reliable source of information with respect to the presence of germs in the pus was the physician who conducted the microscopical examination, Doctor Early. No effort was made by defendant prior to the trial to obtain the testimony of Doctor Early, although defendant knew that the examination was conducted by that physician. And when he undertook to obtain from Doctor Gray information as to the fact he conducted his inquiries in so careless a manner as not to elicit the source from which Doctor Gray had obtained his information; he did not inquire whether or not that physician was present at the examination, but carelessly assumed that he was present without asking a question upon that subject. This lack of diligence might perhaps have been overlooked or condoned by a broad-minded trial judge in the liberal exercise of discretion upon motion for continuance, had the defendant at the proper time interposed such .motion. But whether so or not, it was clearly incumbent upon defendant to act promptly and claim relief at the earliest opportunity, using every means reasonably available at the time to remedy the effect of the failure of proof. This he utterly failed to do, or try to do. Instead of promptly making known his disappointment and surprise so that an appeal to the court might be made for leave to withdraw a juror and continue the case in order to obtain the desired testimony, the defendant was content to observe silence, let the trial proceed and take his chances of a favorable verdict upon the evidence as given. In this we consider the defendant was fatally negligent. New trials on the ground of surprise are and should be granted with great caution, and the granting or refusing of motions on this ground rests largely in the sound discretion of the trial court. The authorities are in accord on the proposition that a new trial will not be granted on the ground of surprise when the party might have been duly informed by the exercise of ordinary diligence, or' where it was induced by his own oversight, forgetfulness or neglect, or where the surprised party has failed to observe due diligence in seeking a remedy, and surely the proposition commends itself to the good judgment of bench and bar. Stevens v. Hey, 15 Ohio, 313; Moore v. Coates, 35 Ohio St., 177, 181; Hoskins v. Hight, 95 Ala., 284; Nelson v. Waters, 18 Ark., 570; Hull v. Ry. Co., 64 Minn., 402; C. & G. E. R. R. Co. v. Vosburgh, 45 Ill., 311; Doyle y. Sturla, 38 Cal., 456; Dewey v. Frank, 62 Cal., 343; Hull v. McKay, 36 Mont., 441.

It is argued by counsel for plaintiff in error that, for an additional reason, the motion was properly overruled, viz., that the testimony of Doctor Early was at most cumulative. We do not regard a decision of that question indispensable to the disposition of the case, but it is in the case, is pertinent and of importance, for had the court held that evidence inadmissible because cumulative, or without probative force, the hearing would necessarily have stopped right there, and an order overruling the motion would have followed. We are not, however, inclined to assent to counsel’s claim. Cumulative evidence, as we understand it, is additional evidence of the same kind to the same point. Parker v. Hardy, 24 Pick., 246. The defendant, in the case at bar, had testified at the trial that he did remove all of the placenta, and was guilty of no negligence, and introduced various items of evidence in support of that claim. Put he introduced no proof as to the presence of the noxious germs in the pus. The testimony of Doctor Early was, therefore, 'a new kind of evidence. It was additional to the other evidence tending to prove the same defense, yet not cumulative because 'of a different character. It tended to establish the same general result but by proof of a new and distinct fact. Gandolfo v. The State, 11 Ohio St., 114, 119; Harris v. Ins. Co., Wright, 548; Reed v. McGrew, 5 Ohio, 376; Perin’s Admr. v. Ins. Co., 11 Ohio, 147; C., C., C. & I. R. Co. v. Long, 24 Ohio St., 133; Hurd v. French, 1 C. S. C. R., 365; Redman v. Culbertson, 2 C. S. C. R., 18.

Other issues affecting the charge of negligence are involved in the case and were somewhat argued by counsel, but it is not necessary to refer to them specifically in disposing of the action of the court on the motion for new trial.

In conclusion it may be added that, as before stated, the granting or refusing of motion for new trial rests largely in the discretion of the trial court. Where this discretion is shown to have been abused the judgment thereon may be reversed, but where it is shown to have been properly exercised the result will not be disturbed by a reviewing court. In this case we are of opinion that the trial court’s discretion was not abused, but, on the other hand, was wisely and properly exercised. This leads to a reversal of the judgment of the circuit court and an affirmance of that of the common pleas, and it will be so ordered.

Reversed.

Davis, Shauck, Price, Johnson and Donahue, JJ., concur.