text:
    Black v. Hoyt.
    1. In a suit for dower, while the amended section 313 of the civil code,. passed April Í3, 1874 (71 Ohio L. 88j, was in force, the heir of the deceased husband was a competent witness for the defense, where the title of the deceased husband was in issue.
    2. Whether he would have been a competent witness under said section, as-it was in force prior to the passage or subsequent to the repeal of said amended section, quaire ?

    3. The delivery of a deed by the grantor to the officer taking the acknowledgment, with unqualified instructions to deliver it to the grantee whenever he calls for it, followed by an acceptance of the title to the'land conveyed, operates to invest the grantee with the title to the land, although for convenience merely the grantee permits the officer to retain possession of the deed.
    4. If, after such absolute delivery to the officer, and acceptance by the-grantee, but before he takes actual possession of the deed, the grantor mari-ies, his wife is not vested with an inchoate right of dower in the prerciises, and on her surviving her-'husband she is not entitled to dower therein.
    Error to tbe District Court of Seneca county.
    This action is brought to reverse tbe judgments of tbe district court and court of common pleas.
    Isabella Hoyt, widow of Samuel Hoyt, claims dower in certain land, alleging that her husband died June 1,1872, and that during coverture he was seized of the land in controversy, which the plaintiff in error, Jacob Black, claims to own.

      Black answers: First, denying tbe seizure of Samuel Hoyt during his coverture with the petitioner; and second, .averring that in 1855, said Samuel, then owning this land .and living with his first wife, Abigail, and part of his chil•dren, in view of the fact that he and his said wife were growing old and were desirous of relieving themselves from active labor, and to make a division of their property ..among their six children, of which Charles was one, entered into a contract with Charles, by which they agreed to ■convey to him this land, being all the land they owned, and which they occupied as a homestead, and also transfer to him all their chattel property; in consideration of which •Charles was to pay to each of his five brothers and sisters •$1,000, taking into account any sums they had theretofore received, and also to provide for the support and maintenance of his father and mother during their lives. He alleges that Charles took possession as owner under this ■contract, in 1855, and so continued until his sale to defendant;'that on the 16th of August, 1868, his mother died; that on the 10th of October, 1863, said Samuel, in execution of said agreement, deeded the land to said Charles, who, •on the 27th of March, 1868, conveyed the same in fee to the defendant; that subsequent to the conveyance of Samuel to Charles, to wit, on the 17th of January, 1864, Samuel married the petitioner.
    The petitioner replies, admitting the ownership of Samuel Hoyt, and the sale by Charles to Black, but denies all other .allegations of the answer.
    The common pleas and district court, on a trial of the issues presented, found that upou the facts and law of the -case the petitioner was entitled to dower, and ordered the ■same assigned.
    Upon the overruling of a motion for a new trial, a bill of exceptions was made part of the record, raising the question whether the courts below erred in assigning Mrs. Hoyt dower in said premises.
    Erom this record it appears, that Samuel Hoyt became the owner in fee of this land April 24, 1854; that his first wife Abagail died August 16, 1863; that he conveyed the-land in fee to his son Charles, October 10,1863, and left the-deed therefor with one Brayton to be delivered by him to Charles; that subsequently, on the 17th of January, 1864, he married the petitioner; and that, on the 27th of March,. 1868, Charles conveyed in fee to Black. These conveyances are in due form, and vest the legal title in Black.
    As the title in fee had been transferred by Samuel to-Charles before his marriage to the petitioner, there was no-seizure by Samuel during his coverture, unless this deed of October 10, 1863, is void for want of a consideration.to. support it, or did not take effect until after the second marriage.
    A trial was had in the district court April 17, 1874, in< which said Charles Hoyt was allowed to testify, in relation. to and in support of the allegations of the defense, against the objections of the petitioner, who claimed that, as the-law then stood, he was not a competent witness.
    Two questions only are presented:

      First. Whether, by section 313 of the civil code as in force April 17,1864, Charles Hoyt was a competent witness?

      Second. Whether, upon the law and evidence, Samuel" Hoyt was, during his coverture with petitioner, seized of an estate in this land, notwithstanding his prior deed for the same to his son Charles ?
    This is a mixed question of law and fact.

      George F. Seney and N. L. Brewer, for plaintiffs in error
    Charles Hoyt had both the legal and equitable title to* the land. The delivery of the deed to Brayton was a delivery to Charles Hoyt. That the deed was not actually delivered to Charles does not defeat the title. Its delivery to Charles in 1868, by operation of law, was a delivery to* him at the time the deed was delivered to Brayton. Shirley v. Ayres, 14 Ohio, 307; Mitchell v. Ryan, 3 Ohio St. 377;. Eckman v. Eckman, 55 Penn. St. 269; Tibballs v. Jacob, 31 Conn. 428; Merrills v. Swift, 18 Conn. 256; Fuvell v. Kers

      ter, 30 Ind. 195; Foster v. Mansfield, 3 Met. 412; Marton v. Corlin, 103 Mass. 571; Peary v. Tilton, 18 N. H. 151.
    No dower attached in favor of the widow of Samuel Hoyt. Miller v. Wilson, 15 Ohio, 108; Rand v. Kendall, 15 Ohio, 671; 1 Scribner on Dower, 392, 393, 564; McMahon w. Kimball, 3 Blackf. 1; Robbins v. Robbins, 8 Blackf 174; Adkins v. Holmes, 2 Ind. 197; Firestone v. Firestone, 2 Ohio St. 415 ; Green v. Green, 1 Ohio, 535 ; Sumner v. Hampton, 8 Ohio, 365 ; Rostler v. Grant, 18 Ohio St. 126.

      Whitely $ Blockford, for defendant in error.
    (No brief for defendant in error come to the hands of the Reporter.)
   Johnson, Chief Judge.

I. As to the competency of ■Charles Hoyt as a witness.

Counsel for Mrs. Hoyt erroneously assume that section ■313 of the code, as amended May 2, 1871 (68 Ohio L. 127), was in force at the date of this trial, April 17, 1874. 'That section was again amended April 13, 1874 (71 Ohio L. 68), and the section as thus amended was in force at the ■time of the last trial, April 17,1874, and governed the case. By this last amendment, the words, “ or is a party claiming •or defending as heir, grantee, or devisee of a deceased per.son,” which were in the act of May 2, 1871, are omitted. If it be conceded that, under the act of 1871, the widow was “ a party claiming as an heir,” and therefore, under that act, Charles Hoyt wras an incompetent witness, yet, as that act was repealed April 13, 1874, four days before the •trial, and the act of the latter date, in which these words were omitted, -was in force, the objection is not well taken.

II. Was Samuel Hoyt seized of this land after his marriage, January 17, 1864, to the petitioner, notwithstanding his conveyance to his son, Charles, October 10, 1863 ? It Is not claimed that this conveyance was made in contemplation of marriage, and in fraud of the rights of the petitioner, who soon after became the wife of the grantor. Neither is it a proceeding in equity to set aside a conveyanee, on the ground that, as between the grantor and the grantee and their privies, it has been obtained by the fraudulent acts of the grantee.

The claim to dower is based on the alleged fact that this deed, though in fact executed on the day of its date, October 10, 1863, was not delivered to Charles until some four years after coverture, if at all, and, therefore, no title passed to Charles, until after the wife’s inchoate right of dower attached.

It is claimed that actual delivery of this deed occurred in 1868, about the time Charles conveyed to Black, and that there was no valid consideration to support it. On the contrary, it is claimed by Black:

First. That the deed to Charles was delivered at the time of its date, for a valuable consideration.

Second. That, even if not delivered in fact or in law, until lifter coverture, yet it was for a valuable consideration, and 'in execution of a contract existing' prior to said marriage, and the rule is invoked which holds the wife’s inchoate right of dower to be subject to an existing executory contract of sale.

In the view we take of this case, it is not necessary to ■state at length the evidence bearing upon the whole case. The proof is clear and uncontroverted, that, prior to the ■death of the first wife, in August, 1863, Samuel Hoyt had verbally agreed to give Charles the farm, if he would take ■care of his parents, during their lives, and pay his brothers .and sisters certain legacies. Whether Charles had so far performed this verbal contract, as to take it out of the statute of frauds — a point largely relied on — becomes immaterial, in view of the undisputed fact that, shortly after his wife’s death, and prior to his second marriage, Samuel Hoyt, in execution of his purpose and verbal agreement, conveyed the land to Charles, if this deed of October 10, 1863, was actually delivered prior to the second marriage.

On the 10th of October, 1863, Samuel Hoyt, in view of his verbal contract or promise to Charles, and of an intended visit to friends in the east, from which, as he said, he might not return, executed the following paper writing,, and left the same with John Yentzer, a neighbor:

“ Know all men by these presents, That I, Samuel Hoyt,, of Rig Spring township, Seneca county, Ohio, do this day divide my property to my six children, as follows, to wit: To Zina Hoyt, Harrison Hoyt, and Samuel Hoyt, and my two daughters, Mary and Sarah Jane, each $1,000; and' Charles Hoyt, my youngest son, I give my farm where I live on, in Big Spring township, Seneca county, Ohio, near-Adrian, containing one hundred acres, more or less, on these conditions, as follows: By paying each of the five-first named fifty dollars yearly, till each of the five has-$1,000, with that they already got of me; and also maintain me as long as I live, and, at my death, have a sermon preached, and get a tombstone, and pay all the expenses; and I will give Charles Hoyt the deed forthwith for the farm.

“ In testimony whereof, I have set my hand and seal this • 10th day of October, 1863. Charles Hoyt, [seal.]

“"Witness present, John Yentzer.”

Yentzer’s explanation of this paper is as follows :

“ Was well acquainted with Samuel Hoyt, deceased; had a conversation with said Samuel Hoyt a few weeks before-his first wife died. Samuel Hoyt and his first wife, Charles’ mother, came over to my house, and Mr. Hoyt said he wanted mo to transact some business for him; that he wanted to make a will; that he had agreed with Charles,, when he came of age, that if he would stay at home and. keep them, and pay the other heirs $1,000, with what they-had got already, that they would let him have the farm.. Said they were to give Charles a deed for the farm; that they then wanted me to write a deed for the farm to Charles,. but I told them I was not a ’squire any more, giving the farm to Charles on the same terms- spoken of.

“ I wrote a will for him. Mrs. Hoyt was taken sick, and. they could not finish all the papers, and she went home and' died from that sickness in about two weeks. They were-both anxious to- give a deed to Charles for the farm.

“ On the 10th day of October, 1863, Mr. Hoyt came to my house again; his wife was then dead; said he was then going away to York State, and wanted me to draw up some papers for him; said again that he had agreed with Charles that, if he would stay at home, take care of him and his wife, and pay the other children $1,000, with what they already had, that he would give him a deed for the farm; and asked me to put that in writing, and that he would sign it; that ho would give a deed to Charles for the farm right away, and wanted me to make out the deed then. I told him that he had better go to ’Squire Brayton’s for that, as I was not a ’squire, and could not acknowledge it. I wrote this paper; dated October 10, 1863, and Samuel IToyt signed it.”

The witness then further testified: “ That said Samuel Hoyt then said that he owed his son, Charles Hoyt, $2,100, which he considered down money — on the farm. Samuel Hoyt then told me that he was going over to ’Squire Bray-ton’s, to have the deed- made out to Charles for the farm.”

After executing the foregoing paper, which was a declaration of his purpose as to his property, Samuel Hoyt went, on the same day, to ’Squire Brayton, and then executed and acknowledged this deed to his son, Charles, to carry out this purpose, and left it with Brayton, to be delivered to Charles. That he had the right to dispose of this land, in execution of the plan disclosed in the paper left with Bray-ton, no one will doubt. That he, on the same day he left this paper with Yentzer, duly executed and left with Bray-ton a deed in fee simple to Charles, is uncontroverted. It is admitted that Brayton did not in fact deliver the deed to Charles until 1868; but it is insisted that the delivery to Brayton was not as an escrow, or upon condition, but absolutely, and therefore immediately vested- the title in Charles Hoyt.

The priority of Charles Hoyt’s title over the widow’s inchoate right of dower, leaving out of view the second point in the case, depends on whether the delivery of the deed to ’Squire Brayton was absolute, so as to vest the title in Charles. If so, the subsequent marriage of the grantor did not vest in his wife an inchoate right of dower in the land conveyed. As to the delivery of the deed, Brayton testifies that:

“ Samuel Hoyt, Sen., on the 10th day of October, 1863, came to me, and requested me to make out a deed for the land described in this deed to Charles Hoyt, his son. Stated he was going east, and, if anything happened, he wanted me to give it to Charles, or, if Charles called for it, for me to stamp it and give it to him. I made the deed, and took the acknowledgment; it remained in my possession until the 26th day of March, 1868. I, on that day, drew an article between Charles Hoyt and Jacob Black, for the sale of the land to Black, and, on that day, I delivered the deed by laying it down on the table in the presence of Charles Hoyt, Jacob Black, and Samuel Hoyt, Sen. I have no distinct recollection about who picked it up or took it áway. I stamped it that day, by Samuel Hoyt’s request, and dated the canceling of the stamps back to the date of the deed. Charles Hoyt furnished the stamps.”

On cross-examination he says:

Q. At the time that Mr. Samuel Hoyt came to you to have you draft the deed, what did he say about the reason for making deed to Charles, and what kind of a deed he wanted to be made ?

uAns. He said he was going east to York State, and he wanted Charles to have that land. He wanted a warranty deed, and was very particular to have it made right. He spoke about this more than once. He said he had been to Yentzer’s and made an article or a will, finally settled down and called it an article.

Q. Atwhat time in the transaction of that business was it that he spoke about the delivery of the deed to Charles?

“Ans. After the deed had been finished, signed, and acknowledged, he said, if any thing happens, or Charles calls for this deed, stamp it and give it to Charles.

Q. Did he name any condition to you upon which the deed was to be delivered to Charles?

“Ans. Nothing further than I have stated.

Q. Did Mr. Samuel Hoyt ever say any thing further to ■you about the delivery of the deed to Charles, after the time of its execution, and prior to the time that the contract was made with Mr. Black for the purchase of the land.

“Ans. Nothing whatever, that I have any recollection of.”

Charles unexpectedly returned from the army, on the 11th of October, the next day after the execution of this deed, and he testifies, that on that day, his father told him what he had done, that he had made the deed and left it with Brayton for him, and that he should go and get it.

Yentzer testifies, that he saw Samuel Hoyt on the same day he executed this testamentary declaration, and the deed, on his return from Brayton’s, and he “ said he had been over to ’Squire Brayton’s; had made the deed for the farm to Charles, and left it with ’Squire Brayton for him, and told me to tell Charles that he had made the deed for the farm to him and left it at Brayton’s, and that I should tell Charles .to go and get it. Charles was then in the army. And he then said that if any thing should happen to him, aud he should die, that I should show that paper to his children ; as to how he had divided his property; said he was afraid one of his sons would make trouble.

“ I saw Charles in the fall of 1863, before the marriage of Mr. Hoyt to the petitioner; told him what his father told me, as I have before stated. Charles said his father had told him all about it; that he was satisfied, and that the deed was as safe at Brayton’s as at his house; he was satisfied.”

Other declarations of the grantor to the same purport were in proof, but as there is no conflicting testimony as to the character of this delivery, it need not be cited. Upon these facts it is clear, that the delivery of the deed by the grantor to ’Squire Brayton, was absolute in its character, and that the knowledge of such delivery was brought home t; the grantee the next day, when he accepted the terms proposed by his father. This operated to vest the legal title in Charles, on the 10th day of October, 1863, three months before the marriage of the grantor to the petitioner. Mitchell v. Ryan, 3 Ohio St. 377; Shirley v. Ayers, 14 Ohio, 307; Steele v. Loury, 4 Ohio, 72; Hummel v. Hummel, 19 Ohio, 17; Hoffman v. Machall, 5 Ohio St. 124.

Whether, had this verbal contract of 1855, between the father and son, remained executory, or had the testamentary purpose, declared in the paper with Yentzer, not been fully executed by the father, a court of equity would, as against the claim for dower, have specifically enforced either, we need not inquire.

The uncontra<Jicted testimony is, that in pursuance of a contract or purpose long pre-existing, and without any intention to defraud his future wife, the grantor fully executed his -intention to deed the farm to Charles. He lived nine years afterward, and always recognized the ownership of Charles, was present at the sale and conveyance by him to Black, in 1868, and assisted in making the sale, and at no time complained that Charles had not fully performed the contract on his part. Even had Charles failed to perform, the failure would not have diverted the title, as the payment of these sums to the brothers and sisters, and the support of the father, after the deed was made, were all, obligations to' be performed subsequently, and their nonperformance would not operate to reinvest the title in the father.

Judgment of the district court and common pleas reversed, and cauBe remanded.


source: Caselaw Access Project

author: Ashburn, J.

license: Public Domain

text:
    Nimmons et al. v. Westfall.
    1. An authenticated transcript of a complete final record in the case was filed with the petition in error in the district court, and the clerk of the court, on his own motion, also placed the original papers and pleadings in the case among the files, without indorsing thereon additional file marks : Held, It was not error to overrule a motion to dismiss the petition in error for want of jurisdiction.
    2/ Where a husband devised real estate to his wife during her life, or while she remains unmarried, under which she takes possession and occupies the land with the knowledge of the heirs at law for a series of years after the time limited in which she may make her election, in the absence of a showing to the contrary she will be presumed to have made her election in fact.
    . 8. A testator by his will clearly vested the title to a specific portion of his real estate in his executors in trust, with directions to sell the land and distribute the proceeds equally among his heirs at law, and it is claimed the executors are vested with a like trust and direction in and over other real estate devised: Held, That the court, in order to ascertain and carry out the intention of the testator in that respect, will loot to the whole will and all its parts.
    4. W. devised to his wife, H., and his son, J. H. W., by a distinct and independent clause of his will, the use of certain real estate, during the life of H., or while she remained unmarried, and then provided: “ But at the death of my said wife, or if she should intermarry with any other person after my decease, it is my will that the said aforementioned and described farm shall be sold, and the proceeds of the same be equally divided between my children or their heirs forever ; or that they, my said children, divide said farm to suit themselves as they may think best Held, 1. By this devise, standing unaffected by the other provisions of the will, no trust estate is created in the executors. 2. Under this clause H. and J. H. W. take estates for life in the land described therein, determinable on the death or marriage of H., with remainder in fee to the heirs at law of the testator.
    5. The act of April 13, 1865, entitled “ an act supplemental to the act to authorize the sale or lease of estates tail and estates for life in certain cases,” by express provision extends and applies the acts of April 4, 1859, and March 3,1864, to all estates tail or for life, with remainder over to any other person or persons, and to all determinable estates which may be created by will, etc., after its passage.
    6. Under the act of April 4, 1859, and the acts supplemental thereto, the owner of the life estate in possession, created by will subsequent to April 13, 1865, may institute proceedings for the sale of both the life estate and the estate in remainder; and this may be done notwithstanding the'testator may have made special direction in his will for the disposition of the land on the determination of the life estate.
    7. The act of April 4,1859 (S. & 0.550), and the supplemental acts of March 30, 1864 (S. & S. 346), and April 13, 1865 (S. & S. 347), in so far as they affect and apply to estates created subsequent to their passage, are not in contravention of section 19, of article 1, of the constitution of this state.
    Error to the District Court of Huron county.
    This action was originally brought in the Court of Common Pleas of Huron county, by Hannah Westfall, widow of 'Harvey Westfall, and her son, Jacob II. Westfall, against the heirs at law and the executors of Harvey Westfall, praying for the sale and reinvestment of certain real estate described in the petition, under the acts authorizing “ the sale or lease of estates tail and for life in certain cases,” and acts supplemental thereto. Plaintiffs aver that they claim title to a life estate therein under the will of Harvey West-fall, who was the husband of Hannah , and father of Jacob II. Westfall, plaintiffs.
    The petition avers, among other things—
    “ That on or about the 25th day of August, a. d. 1869, Harvey Westfall, residing within the county of Huron, Ohio, departed this life, testate, leaving said-plaintiff, Hannah Westfall, his widow, and said Jacob II. Westfall, the husband of Emma Westfall, Sarah A. Starr, the wife of Stephen II. Starr, Mary E. Nimmons, the wife of Philip B. Nimmons, Florence Whitehead, the wife of Charles Whitehead, and Sidney O. Gibbs, the wife of David W. Gibbs, his sole heirs at law. . . .
    “ That all debts existing against said estate have been paid, and that said executors have in their possession and control property and dioses in action much more than sufficient to meet any demands that may be made upon them as such executors, and can, in no event, require any portion of the premises in the petition described to pay obligations or claims against or of the estate of testator.

      “ That the plaintiffs are in possession of said farm, and are unable to manage same in such a manner as to make it profitable, or even to keep it in as valuable a state as it has heretofore been, and it is depreciating’ in value constantly, by decay of buildings and other improvements.
    “ That the sale of said farm and the loaning or reinvestment of the proceeds as provided by law, will be greatly for the benefit of these applicants, and, as plaintiffs believe, will do no substantial injury to heirs in succession or expectancy. The proceeds of the sale of said farm will yield a net income of at least one-third greater than said farm will yield.”
    The defendants, Philip B. Nimmons and David "W. Gibbs, were appointed executors, and they qualified as such.
    A copy of the will and codicil was attached to, and made part of, the petition. They are as follows:

      “Item, First. — I give and devise to my beloved wife, Hannah Westfall, in lieu of her dower, the house and lot where we now reside, being the east half of lot No. 30, and also the west half of lot No. 31 (except an alley on the north side of said lot 31, ten feet wide), with the right of the gate-passage from lot 30 to lot 31, and with all the privileges and appurtenances thereunto belonging, situate in the corporation of the village of Plymouth, Huron county, Ohio, during her natural life ; and I also give and devise to her, my said wife, all the household furniture that may have belonged to me at the time of my decease, and also the sorraj. mare, the Buffalo buggy, the single harness, and one cow, during her natural life as aforesaid.

      “Item, Second. — I give and bequeath to my said wife and my son, Jacob H- Westfall, the use of my farm situate in New Haven township, Huron county, and State of Ohio, the same being the west half of lot No. 63, all of lot No. 64, and about fifty-eight acres, being the east part of lot No. 65, and also about seventy acres in lot No. 150, during the time that she, my said wife, remains my widow; but at the death of my said -wife, or if she should intermarry with any other person after my decease, it is my will that the said, aforementioned and described farm shall be sold and the proceeds of the same be equally divided between my children or their heirs forever; or that they, my said children, divide said farm to suit themselves as they may think best.

      “Item Third. — I devise and bequeath to my said wife and my son, Jacob TI. Westfall, the use of $2,000, during the time that my said wife remains my widow ; but at the time of the decease of my said wife, or if she should intermarry, then it is my will that said $2,000 be divided equally between my children, or their heirs, for their proper use forever. And it is my desire that Philip B. Nimmons, herein appointed by me as one of my executors, shall pay the proportion of the above-naméd $2,000 that may be going to my daughter, Sarah Ann Starr, as she may need the same from time to time, or any other property that may be going to her out of my estate in the same way.

      “Item Fourth. — I give and devise to my son, Jacob H. Westfall, and his heirs forever, the store house and lot on which it stands, being part of lots No. 43 and 44, in the village of Plymouth, and now occupied by Kilburn & Co., as merchants in the dry goods trade.

      “Item Fifth. — I do give and devise unto my daughters, Sarah Ann Starr, Mary F. Nimmons, Sidney Gibbs, and my son, Jacob II. Westfall, and my daughter, Florence Whitehead, or their heirs forever, an equal projDortion of the proceeds or avails of the following described real estate,' situate in Eaton county, and State of Michigan : The west half of the northwest quarter of section 18, the southwest fractional quarter of section 18, northwest fractional quarter of the southeast quarter of section 18, all of said lands being in town 4, and range 5, in Sunfield township, in said county ; and also one other lot of land situate in Montcalm county, State of Michigan, being the west half of southwest quarter of section 27, town 10, range 5, and all of the above tracts of land described contain about 380 acres; and also lot No. 2, in block No. 16, and lot No. 7, in block No. 129, in the city of Lansing, Ingham county, and State of Michigan; and it is nay desire that my executors herein appointed by me, shall apportion and distribute all of the property herein mentioned, to each and every heir herein named, according to this my will, and the strict rules of justice and equity.

      “Item Sixth. — I give and bequeath to each of my children, or their heirs, an equal proportion of my personal property (except that already disposed of to my said wife), that may be found in my possession at my decease, after deducting a sufficient amount to pay the expense of my last sickness and funeral charges, and raise a suitable monument to my memory after my burial.

      “Item Seventh. — I do hereby nominate and appoint Philip B. Nimmons and D. W. Gibbs executors of this my last will and testament, hereby authorizing and empowering them to compromise, adjust, release, and discharge, in such manner as they may deem proper, the debts and claims due me. I do also authorize and empower them, if it shall become necessary, in order to piay my just debts, to sell by private sale, or in such manner, upon such terms of credit or otherwise as they may think proper, all or any part of my real estate and deeds to purchasers to execute, acknowledge, and deliver in fee simple. I desire that no appraisement and no sale of my personal property be made (unless actually necessary), and that the court of probate direct the omission of the same in pursuance of the statute.
    “ I do hereby revoke all former wills by me made.
    “ In testimony hereof, I have hereunto set my hand and seal, this 15th day of August, a. d. 1868.
    “ Harvey Westeall. [seal.]
    “ Codicil. — Whereas, I, Harvey Westfall, on the 15th day of August, in the year 1868, made my last will and testament of that day, do hereby declare the following to be a codicil to the same :

      “Item First. — I do hereby make my desire known, and it is my will that Philip B. Nimmons, one of my appointed executors of my last will and testament, pay the proportion of the $2,000 (mentioned in item third of the will, to which this codicil is attached), that may be going to my daughter, Florence Whitehead, as she may need the same from time to time, or any other property that may be going to her out of my estate in the same way, the same as I have directed him, said Philip B. Nimmons, to pay to my daughter, Sarah Ann Starr.

      “Item Second. — I give and devise to my beloved wife, Hannah Westfall, the sum of $1,000, in lieu of the house and lot that I willed to her, described in item first in said will, to which this codicil is attached, to be paid to her out of the proceeds- of the sale of said homestead lot in the village of Plymouth, as described in said item first in said will.
    “ In witness whereof, I have hereunto set my hand and seal, this 5th day of June, a. d. 1869.
    “ Harvey Westfall, [seal.]”
    To this petition, Mary F. Nimm.ons and Philip B. Nimmons, in their personal right, and Philip B. Nimmons, as executor, interposed a general demurrer, assigning in each demurrer as causes therefor:
    1. That there is a defect of parties plaintiff therein.
    2. That there is a defect of parties defendant therein.
    8. That the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiffs against these defendants, or either of them.
    The demurrers were sustained in the court of common pleas, and the petition dismissed.
    A petition in error was filed in the district court, to which was attached a full and complete transcript of the final record made up in the court of common pleas, “as found recorded in the law record of said court, volume 31,” etc.
    In the district court, Mary F. and Philip B. Nimmons moved the court to dismiss the petition in error, for the reasons :
    1. That plaintiffs did not file with their petition the original papers and pleadings in the case wherein the final judgment was rendered, which they ask this court to reverse.

      2. That before substituting for said original papers and pleadings the transcript of record which they attached to their petition, the court of common pleas which rendered said judgment did not by order entered on its journal require the said transcript to be substituted for the said original papers and pleadings.
    In support of this motion, defendants introduced the affidavit of B. P. Smith, clerk of both courts, who testified “that when the said plaintiffs filed their petition in error in the above entitled case in this court, they did not direct or request affiant to file with it the original papers and pleadings of the case, of which a transcript is attached to said petition; but affiant thinking it proper that they should be filed with the said petition in error, placed them with it in |he district court files, without any order of court or instructions from the plaintiffs or their attorneys, but did not indorse any filiug thereon in the district court.”
    The motion was overruled. Defendants excepted, and a bill of exceptions, embodying the affidavit of Smith, the clerk, appears in the record.
    On final hearing, the court overruled the demurrers, and reversed the j udgment below. To this j udgment of reversal the defendants excepted. It is now sought to have the judgment of the district court in overruling the motion to dismiss the petition in error and the judgment on the demurrers reversed. To that end it is here assigned for error:
    1. That the district court erred in overruling the motion of Mary E. and Philip B. Nimmons therein to dismiss the petition in error of Hannah and Jacob H. Westfall.
    2. That the district court erred in proceeding to hear and determine the ease on petition in error of Hannah and Jacob H. Westfall, when it had no jurisdiction thereof.
    3. That the district court erred in sustaining the petition in error of Hannah and Jacob H. Westfall, when the petition and the transcript of record therein mentioned were not sufficient in law to maintain the proceeding in error.
    4. That the district court erred in overruling the demurrers filed by these plaintiffs in error to the amended petition of Hannah and Jacob II. Westfall in the original action in the court of common pleas.
    5. That the district court erred in its opinion and judgment that the facts set forth in the amended petition of Hannah and Jacob H. Westfall were sufficient in law to maintain their aforesaid action against these plaintiffs and others in the court of common pleas.
    6. That the district court erred in reversing the judgment of the court of common pleas in the action.
    7. That the district court erred in rendering its judgment in favor of Hannah and Jacob H. Westfall, when it should have been given for these plaintiff's in error and their co-defendants in the case, according to the law of the land.

      JE. T. Stewart, for plaintiffs in error.

      Bissell § Gorrill, for defendants in error.
   Ashburn, J.

It is claimed that the district court erred in refusing to dismiss the petition in error, on the ground that that court had not acquired jurisdiction in error,for the reason that plaintiff in error had failed to file, or caused to be filed with his petition in error, the original papers and pleadings under section 517 of the code as amended. 67 Ohio L. 114-15.

The purpose of the amended section was to enable an aggrieved party to more speedily reach a reviewing court and lessen the amount of costs in proceedings in error. To this end it should be liberally construed. In this view, under that section, the complaining party may have his option whether he will prosecute his petition in error on an authenticated transcript of the docket, or journal entries, and final judgment rendered, together with the original papers and pleadings in the case, or upon an authenticated transcript of a complete record in the case. In either case, the object of the code is to have the record, or the material out of which the record is to be made, brought into the court of review.

The district court ruled correctly on the motion to dismiss. There was found in that court, on the hearing, an authenticated transcript of a complete record, which necessarily included the journal entries and final judgment, tot gether with true copies of the original papers in the case. It appears that the original papers and pleadings were transferred from the office of the clerk of the common pleas court to "the files in the office of the clerk of the district court, on his own motiou, and were left in that court without additional file marks to evidence the filing of them. This objection is technical and unsound. The original papers were transferred to the district court files by the officer who had authority to do so. In the district court the identity and filing of the papers were proven by the affidavit of the clerk. Eile marks .are but evidence of the filing. If they had been “ either strung upon a thread, laid in a drawer or in a pigeon-hole,” in the district 'court clerk’s office, we conceive that they would be filed there within the terms of the law. Haines v. Lindsey, 4 Ohio, 90.

The demurrer avers a defect of parties, plaintiff and defendant.

The statute, in this class of cases (S. & O. 551), requires that “ all persons in being, who may be interested in the estate, or who may by the terms of the will, deed, or other instrument creating the entailment, thereafter become interested therein as heir, reversioner, or otherwise, shall be made parties to the petition.”

The petition in this case alleges that Harvey "Westfall departed this life, testate, leaving said plaintiff, his widow, and said Jacob II. Westfall, the husband of Emma West-fall, Sarah II. Starr, the wife of Stephen H. Starr, Mary E. Nimmons, the wife of Philip B. Nimmons, Elorence Whitehead, the wife of Charles Whitehead, and Sidney C. Gibbs, the wife of David W. Gibbs, the sole heirs at law.”

All the beneficiaries named in the will, and more, are included in this enumeration of parties, together with the executors elsewhere named in the petition. The averment that the group of persons named in the petition as being the “ sole heirs at law ” of the testator, substantially ex-eludes the existence of others. The phrase is equivalent to alleging they are the only heirs, or all the heirs: We discover no such defect of parties, or defective averment in relation thereto, as will avail the demurrants on demurrer.

It is urged that the petition is defective, because it fails to aver and show that the plaintiff, Hannah, elected to take under the provisions of the will. For this reason, she can only be considered as having a dower estate in this land, and the statutes authorizing the sale or lease of entailments by express provision exclude “ estates in dower” from their operation.

When these proceedings were commenced, the plaintiffs were in possession, claiming under the will. From the probate of the will the time had long passed in which the widow could make her election, prior to the filing of this petition. In view of this fact, if an election was necessary to secure to her the provisions of the will, an election will be presumed from the acquiescence of the parties interested. Stockton v. Wooley, 20 Ohio St. 184.

For a more forcible reason I think this objection to the petition can not prevail. The plaintiffs take their estate under the will free from all consideration as to dower. It is a direct divise to Hannah Westfall and Jacob H. West-fall, jointly, determinable on the death or marriage of Hannah. The estate inures to them under the will for their use, and the right to receive, possess, and enjoy under this provision of the will is not contingent on Hannah’s election. They have their estate by virtue of the expressed intention of the testator.

Defendants claim the legal title to all the real estate named in the will, except that named in item 4, is vested, by the will, in the executors, to enable them to discharge the trusts created and confided therein to them.

A correct solution of this claim, to that extent, involves a construction of the will. The real estate named in item 2 of the will is that in which plaintiffs claim a life estate, unincumbered by any trust in the executors, with remainder in fee to the heirs at law of the testator. The executor’s claim of title in trust appears, to us, a clear misconception of the terms of the will and the intention of the testator.

The power and title vested by the will in the executors must be found and determined by ascertaining the intention of the testator, as shown by and from a consideration of the whole instrument and all its parts.

The general power and duty of the executors are conferred by item 7. We are concerned, however, with only the last clause, in which they are authorized, “if it shall become necessary, in order to pay my just debts, to sell by private sale or in such manner, upon such terms of credit or otherwise, as they may think proper, all or any part of my real estate, and deeds to purchasers, to execute, acknowledge, and deliver in fee simple.” This is a general power for the performance of a specific duty, the execution of which might or might not be required to be executed. “ A mere direction in a will to executors to sell land is a naked power, and gives them no estate or interest in the land whatever, and, until the power is executed, the title to the laud descends to his heirs at law.” 3 Zabr. (N. J.) 447; 2 Ed. Ch. 156; Co. Litt. 42a; 9 Johns. 104; 1 Shep. Touch. 448 ; 19 Law Library, *233 ; Bissett on Estates for Life, 9. The demurrer admits the debts against the estate have all been paid, and that the executors have in their possession and control property and choses in action to an amount greater than will be required to satisfy all demands against the estate. Since no necessity can arise to call for an exercise of this naked power, under this general provision, the executors are vested with no title to this land.

In searching the will, it is found that, when the testator had in his mind the purpose to vest title in his executors, such intention appears in unmistakable terms — as in item 5. Here he devises to his children, naming them, lands in the State of Michigan, “ or their heirs forever, in equal proportions of the proceeds or avails.” Describes the land, and then declares: “ It is my desire that my executors herein appointed by me shall apportion and distribute all the property herein mentioned, to each and every heir herein named, according to the tenor of this my will, and the strict rules of justice and equity.” By this item, the legal title to the Michigan land is vested in the executors. The trust, however, is limited to the lands named in this clause of the will. It can not be extended to another, without a clear disregard of the intention of the testator. The word “ herein,” used in this cause, whether applied to the beneficiaries, the power, or the will, should not be extended, by construction, to any clause than the one where it is found.

As to the real estate embraced in item 2, the language of the testator is wholly different. It is: “I give and bequeath to my said wife and my son, Jacob H. Westfall, the use of my farm (describing it), during the time that she, my wife, remains my widow; but, at the death of my said wife, or if she should intermarry with any other person after my decease, it is my will that the said aforementioned and described farm shall be sold, and the proceeds of the same be equally divided between my children, or their heirs forever, or that they, my said children, divide said farm to suit themselves, as they may think best.” No trust is here created. The executors are not alluded to. The estates created are a life estate in plaintiffs and an estate in remainder in fee in the heirs at law of the testator. On the termination of the life estates, the heirs at law are vested with an option to sell the land and divide the proceeds among the beneficiaries, or to divide the land equally among them, as they, the children, shall think best. To carry into effect the devise, the persons authorized to sell or divide the land should be, and are, vested with the legal title. It is urged that the statutes authorizing the lease and sale of estates tail for life, etc., are in conflict with the wills act, because destructive of the intention of the testator. We think not, for the reason that the testator must be regarded as making his will in reference to all existing laws affecting rights in property.

The estate created by the will is a life estate, determinable on the death or marriage of Hannah Westfall, remainder in the heirs at law of testator. ' The fact that the life estate may terminate on the marriage of the first doneerenders it none the less a life estate. Coke says: “ If a man grant an estate to a woman, dum sola fuit, or durante viduitate, or quam diu se bene gisserit, or to a man and a woman during the coverture, or as long as the grantee dwell in such a house, etc., or for any like uncertain time, which time, as Braeton saith, is tempas indelerminatum — in all1 these cases, if it be of lands or tenements, the lessee hath,, in judgment of law, an estate for life, determinable, if livery be made,” etc. Co. Litt. 42a; Bissett on Estates for Life, 7.

Having ascertained the nature of the estates created by the'will, and that they are clogged by no trust, we are to ascertain whether plaintiffs are entitled in law to the relief provided in the act of April 4, 1859, for the sale of estates in tail, and the acts of March 3, 1864, and April 13, 1865, supplementary thereto. The court of common pleas has jurisdiction conferred on it to order the sale of all estates tail for life in remainder, and all determinable estates,, whether such estate may be created by will, deed, or other-instrument of writing, or may be derived by the law of descent and distribution, under the statutes of this state, except estates in dower or by courtesy. This jurisdiction may be invoked by the first donee in tail for life, or doneeof a fee simple estate, determinable on the happening of any future event, etc., and may be exercised when the sale-would be for the benefit of the applicant, and do no substantial injury to the heirs in tail, or others in succession, reversion, or remainder or expectancy.

It has been determined that the acts herein cited, to the-extent that they affect estates created before their passage, are in conflict with section 19 of article 1 and section 28 of article 2 of the constitution, and, for that reason, are inop ■ erative upon estates which were created and became vested before their passage. Gilpin v. Williams, 25 Ohio St. 283. No such infirmity exists in these acts, in relation to the estates under consideration. They were created and vested subsequent to the passage of these acts.

While the general assembly may not constitutionally legislate so as to disturb acquired rights and vested estates, it has power to legislate upon the subjects embraced in the acts of 1859, 1864, and 1865. Without entering upon a discussion of the policy of such legislation, the estates embraced in these statutes are within the scope of legislative power, and if the act providing for and regulating the sale of such estates is in force at the time the estate is created, it will be considered as created subject to the provisions of the statute. In such case, there is no invasion of the rights of private property, and such statutes are not in conflict with section 19 of article 1 of the constitution, or the 28th section of article 2.

The legal right to have the relief provided in these acts is not dependent upon the consent of the owners of the estate in remainder, etc.

The legal right of a party to apply to a proper tribunal, for the relief provided by the statute, is an incident attaching to the estate. Granting the relief involves two questions of fact — one, the benefit of the applicant, the other, injury to the owner iu remainder, etc. The person creating the estates is pi’esumed to have intended a benefit to accrue to the first donee, so that when it is made to appear, from some cause, that the estate vested in such donee is not beneficial to him, and can be made so in another form of investment, without injury to the owner in remainder, reversion, etc., these statutes step in to the aid of the first donee, when they can do so without injury to the owner in remainder, reversion, etc.

The conclusion is that the court of common pleas erred in sustaining the demurrers, and the district court did not err iu taking jurisdiction in error, and reversing the judgment of the court of common pleas.

Day, J., did not sit in this case.


author: Wright, J. Johnson, Chief Judge,

text:
    Wolsey v. The Lake Shoes and Michigan Southern Railroad Co.
    1. If an employe enters into or remains in the service of a railroad company, with a knowledge of its rules and regulations, he must be held as undertaking to acquiesce therein; and if he is afterward injured, by reason of his violation of such rules and regulations, he can not claim that their reasonableness is a question to be decided by a jury, in an action by him to recover damages for the injury thus occasioned.
    ■2. If the employe has suifered an injury, brought about by a violation of the plain instructions of his principal, he can not hold his principal liable therefor.
    Error to the District Court of Lucas county.
    Wolsey brought suit in the court of common pleas to re-cover from the railroad company for an injury happening to him while brakeman. He was engaged in coupling cars upon a train, when his right hand was caught, by the cars coming suddenly together. It. was claimed by him that there was negligence on the part of the railroad company •in many particulars, such as that the coupling apparatus was insufficient, and that the locomotive was out of order .and not controllable by the engineer, to the extent of entire .safety. Plaintiff recovered verdict and judgment.
    The defendant below gave in evidence a rule which had been printed on the time-tables of the company about six months when the accident occurred, of which the following is a copy: “ 30. Great care must be exercised by all -persons when coupling cars. Coupling by hand is strictly prohibited; a short stick must always be used to guide the link.” The plaintiff admitted that he had knowledge of this rule, but testified that it was impracticable, and had never been observed.
    In charging the jury upon this part of the case, the court said: “The defendant claims that the plaintiff was in a measure the author of his own injury, and guilty of negligence in not obeying a rule which the company had then in* force. The rule has been read in your hearing, and the-substance of it is, that these couplings must be made with a short stick, and that the hand is not to be used. Now I speak of this as a rule; if it is impossible to make these couplings with a stick, why, from the very necessity of the case, the rule can not be enforced ; and if it is more dangerous to make these couplings with a stick than it would be to make them with the hand, it is an unreasonable rule, and the law would not enforce it. And if, as it is claimed here by the plaintiff, this rule was not made in good faith, but was made with the intention of protecting the railroad from any liability it might be under in accidents of this-kind, and there was no intention of the railroad company, that the rule should be observed, why, that is no rule at all, and of course would not defeat the action. But if you find that it was a practicable rule and a reasonable rule, and that the rule was adopted by the company in good faith, with the intention to prevent injuries of this character to-the brakemen in its employ, why, it is a perfect defense to this action ; that is, if it is a uniform rule, a rule that is not varied; not if it is a rule subject to exceptions. Now, if there are instances in their ordinary run of business where couplings can not be made with a stick, if such instances do occur, and it is impossible to make them, and dangerous to make them, why, then the rule can not be carried out. There arises a time, then, when from the impossibility of making these couplings with a stick, that the rule can not be carried into force, and some discretion must be exercised by the men coupling. Now, whether that instance happened at this time it is for you to judge from the evidence. Now, taking all the circumstances of this case as revealed to you in the evidence, looking at the coupling as presented to you in the evidence, with the draw-head of one car a little lower than that of the other; the rails, if you so find them, projecting over from one car, and taking all the evidence bearing upon that point at the time the coupling was made; in other words, putting yourself on ithe spot at the time the accident occurred, and looking at that coupling, and if you find that it was impossible to make that coupling with a stick, that it was incurring more danger to do it with a stick than without a stick, then I say it was for this brakeman, the plaintiff, to exercise or.dinary care and prudence in making that coupling, as he saw best: and if you find from the evidence that he did ■exercise ordinary care, then he is free from fault.”
    A large number of charges were asked by both defendant ¡and plaintiff, many of which were given. Defendant below asked the following: “IX. The defendant had the .right to make such rules and regulations for the conduct of its servants and agents while engaged in its service, as, .in its judgment, were reasonable and proper, or would conduce to the safety and comfort of its employes; and all •servants, while engaged in such service, with a knowledge -of such rules and regulations, were bound to act in conformity therewith; and if the injuries were sustained by ¡them while acting in violation thereof, no recovery can be had of the defendant therefor, if such violation was the ■cause of, or materially contributed to, such injury.”
    This the court refused, but did charge as follows: “ That ¡■the defendant had the right to make such rules and regulations fpr the conduct of its servants and agents while engaged in its service, as were reasonable and proper, or would conduce to the safety and comfort of its employes; .and all servants while engaged in such service, with a knowledge of such rules and regulations, were bound to act in conformity therewith, and if injuries were sustained by them while acting in violation thereof, no recovery can be /had of the defendant therefor, if such violation was the cause of, or materially contributed to, such injury.”
    The charge given, differs from the charge asked, only in the ■omission of the words “ in its judgment.”
    Defendant also asked the court to charge that: “ XI. The -company is not liable for an injury which happens to an ■employe in consequence of a disregard of -its plain instruct•■tious, even though other employes also disregard the same.

      “ XII. If the- defendant, in the exercise of its discretion,, adopted a rule for the conduct of its employes while engaged in its service, and intended for their personal protection against injury; and an employe, knowing the rule,, neglected to avail himself of its provisi' ms, and in consequence of such neglect sustained an inju-.y, he can not hold, the defendant liable therefor.”
    These charges were refused, proper ex .option being taken..
    Judgment having been entered in fa"\ or of Wolsey, in the-court of common pleas, the railway company filed a petition in error in the district court. That court reversed the judgment ,of the common pleas, for refusing to instruct as-required in the 9th, 11th, and 12th instructions above. To reverse this judgment of the district court, Wolsey filed his; petition in error in the Supreme Court.

      Scribner Hurd, for plaintiff in error:
    The question of negligence is for the jury. (Railroad v. Stout, 17 Wallace, 657, and eases there cited.) All the facts bearing upon the question of negligence should be presented to, and considered by, the jury. The symmetry of the rule of law is not to be impaired by the regulations of a railroad company. The company can not, by its own decree, establish that the failure to observe their regulations shall be conclusive evidence of contributory negligence, as against an employe. This is beyond the power of legislative authority even. (Cooley, Constitutional Limitations-[1st ed.], 368, 369.) Neither can it, by any such action on. its part, withdraw the question of contributory negligence from the consideration of the jury, and devolve its-determination exclusively upon the court. Whether or not a rule, adopted by a railroad company is reasonable, is to-be left to the jury, under instructions from the court. 1 Redf. on Railw., chap. 6, § 1, par. 2; Day v. Owen, 5 Mich.. 520; Ayres v. Morris and Essex Railway Co., 5 Dutcher, 393; Smith v. Pittsburgh, Ft. Wayne and Chicago Railway Co., 23 Ohio St. 10. The rule relied upon in the case at bar, it will be observed, related solely to the manner in. which the plaintiff should perform a certain piece of work; it purported to he for his special protection. It had nothing to do with the general management or operation of the trains of the company. Whether this particular service, under the circumstances existing at the time, was negligently performed by the plaintiff, was a question of fact; whether, under the circumstances, he was negligent in not using a stick, was a question of fact. It was not for the court to say, as a matter of law, that the plaintiff should have used a stick. The correct determination of this question depended upon a fair consideration of all the testimony showing the situation and condition of the cars, the situation and condition of the couplings, of the dead-woods, with which the cars were equipped, of the necessity of prompt action, and all the other attendant circumstances detailed by the proofs. Wharton on Negligence, § 219.
    2?. E. T. Waite, for defendant in error :
    A railway company may adopt reasonable rules and regulations for the performance of its duties in the transportation of passengers, and the passengers are required to conform to them. But whenever a question has arisen as to the reasonableness of a particular rule, the courts have invariably, so far as possible, taken it upon themselves to determine the question ; and but one reported decision can he found — that of Morris and Essex R. R. Co. v. Ayres, 5 Dutcher, 392 — in which such a question has been fully submitted to the jury. While in New York and Illinois, where that'question was distinctly raised, it has been held to be error for’a court to submit to the jury the question, whether a rule adopted by a railroad for the government of its business is a reasonable one or not; and that such question is one purely of law, and must be determined by the court. Vedder v. Fellows, 20 N. Y. 126; Illinois Central R. R. Co. v. Whittemore, 43 Ill. 420.
    The reason for this is obvious. If each rule is to be determined by the particular circumstances of every case that may arise under it, not only would the public be in conveuienced, but carriers of passengers be practically disabled in the performance of their duties. A decision once made with reference to a rule should be of general application and conclusive, not local merely and temporary.
    And the reasons assigned why a rule for the government of passengers should he reasonable, are based upon the fact that the necessities of a traveler give him no option or choice as to the terms of his contract. He has no opportunity for rescinding the contract if the terms prove objectionable, nor for protecting himself during the passage. Hence the courts rightfully interfere in his behalf. Johnson v. Concord Railroad Corporation, 46 N. H. 213; Dietrick v. Pennsylvania R. R. Co., 71 Penn. St. 432, and the authorities there cited; Commonwealth v. Powers et al, 7 Met. 596; C., C. & C. R. R. Co., v. Bartram, 11 Ohio St. 457.
    It is the duty of a railway company to adopt rules and regulations for the government of its employes. And if it is necessary for a passenger to comply with rules adopted for his conduct, it is even more so for an employe to comply with those adopted for bis government, since in many instances the lives of passengers depend upon this strict obedience. And if it is just that the reasonableness of rules for passengers should not be submitted to a jury, it is, at least, equally so that those for the government of employes should not. But, as between the company and the employe, we claim, that not even the courts should attempt to determine the merits of any such rule or regulation. In doing so the courts would virtually assume control of what has become a complicated and highly important business. An employe, unlike the passenger, is in nowise forced into his engagement with the company. The contract is deliberately entered into, with full opportunities for ascertaining all his duties, and the rules he may be required to comply with ; and he is at liberty to withdraw from the service at any time he finds it objectionable. Certainly in the management of its passenger trains the company should 'have the right to rely upon and be protected in requiring a strict obedience from an employe of all its known rules and regulations, relating thereto. Suppose an accident to occur by ■which the employe should be injured and the lives of passengers lost, in consequence of a known rule for the conduct of those ru Lining the train having been disregarded by the injured employe, simply because he and others considered the rule a frivolous one, or one that could not be followed with safety to themselves. In an action by this injured servant, would the court undertake to inquire into the propriety of the rule, or ascertain if the employe ivas correct in his •opinion or not, especially after the disobedience had resulted in the loss of life ? If this would not be done in an instance •of this kind, where will the line of distinction be drawn between rules to be inquii-ed into, and those not ? The only safe course will be to let the company, as between itself and its servants, manage its own business. When no rule as to a particular conduct has been adopted, or the employe found to be excusably ignorant of a rule, then the courts might properly undertake to ascertain if the ■conduct of the servant was reasonable or not under the circumstances. But the employe should be left to stand the result of his own delibeL’ate disregard of a known rule. .If he ■can not consistently obey, he should leave the service. If he considered it a personally dangerous rule, he should, at at least, make known his objections, before he would be excused in a persistent disregard of it. But however it be decided about even the courts undertaking, to inquire into the propriety of such established rules, there are still stronger reasons why neither the rights of the public nor •of the company, in matters of such vital importance to both, should be subjected to the varying opinions of juries.
    A railroad employe has the right to expect and exact that the company furnish him with suitable and safe instrumentalities for the performance of his work, and the company should have the equal right to expect and require him to use such instrumentalities in accordance with its instructions. But if an employe continues without objection to -use them, knowing them to be unsafe or unsuitable, he is deemed to have waived his right to damages from injurious results from such use; and so, if he continue to use them,, knowingly, in oppsition to the direction as to their use, he-should .be deemed to have waived his right to damages for injurious results from such disobedience, independent of any question as to which was the best or safest method of use. Railroad v. Barber, 5 Ohio St. 541: Ford v. Railroad, 110 Mass. 240.
   Wright, J.

The statement of the case involves, and we only propose to consider this rule No. 30, and the charges given.and refused with relation to it.

By the ninth charge the railroad company asked that as to the conduct of its agents and servants, while in its service, it had the right to make just such rules and regulations, as in its judgment were reasonable and proper. The-charge, however, was that the railroad company was authorized to make such rules as were reasonable. Thus-making somebody else the arbiter as to the reasonableness-of rules, and not the railroad company, and leaving it to the jury to judge of such a question.

As to outside parties, those not in the service of the company, it is generally maintained that an inquiry as to the reasonableness of rules and regulations is proper. 1 Red. Ry., ch. 6, § 1, etc.

These questions must frequently arise with reference to-passengers, but even then it is held that the question of reasonableness or not is purely a question of law to be determined by the court, and never to be left to the jury. Vedeler v. Fellows, 20 N. Y. 126 ; Ill. Cent. R. R. v. Whittemorer 43 Ill. 420.

The reason, and a sufficient one, for thus holding, is, that as a question of law certainty is ascertained. If it be submitted to juries, one jury may hold a rule to be reasonable, the next may hold the reverse.

Although the reasonableness of a regulation may be disputed by a passenger, we find no case where it has been allowed to an employe of the company. If a railroad company can not have strict compliance with its orders from its servants, subordination and discipline would be at an end.

If the employe is justified in disputing the reasonableness or propriety of a regulation, it- must follow that-he is justified in disobeying that regulation, if his judgment so dictates, and upon such principles railroads would-be run with the greatest difficulty, and most imminent danger to the traveling public.

These companies are held to a severe line of responsibility for the acts of their servants, upon the idea that the act-of the servant is the act of the master; because the master has told the servant exactly what to do, and he has done it.

Certainly the whole law, “ qui facit per ctlium” etc., depends upon the idea of obedience to-.orders. The conduct of a gigantic corporation, with hundreds and thousands of employes, is not unlike that of an army; its entire action depends upon the fact that the commands emanating from authority are to be complied with by every one subordinate-to that authority.

In this case, a rule is in force, known to the employe, directing him how to couple cars. He willfully disregards-that rule, refuses to obey it, and is thereby hurt; hurt simply because he disobeys an order. It can not be proper that he should now claim damages for that hurt, because, he-says, in his judgment, this was not a reasonable rule. It must be allowed that, as to their own employes, companies may be allowed to make such rules as they think best. No-one need accept service under such rules, except of his own volition; but, having accepted, he is bound by them, at least so far as that he can not recover damages for a direct •violation of them.

Judgment affirmed.

Johnson, Chief Judge,

dissents, on the ground that the railroad company is not the sole and final judge of the reasonableness of its rules and regulations, prescribing the-mode and manner in which its employes shall perform their duties, and, in an action for damages for its negligence, can not excuse itself for such negligence by showing a failure by the employe to observe a rule which is, in fact, unreasonable and dangerous, where the employe has otherwise exercised ordinary care and prudence in the premises.

Scott, J., dissents, on the same ground.


author: Scott, J.

text:
    Spier v. Corll et al.
    1. The jurisdiction of a court or tribunal entering a judgment in any particular case may always be inquired into, when such judgment is made the foundation of a'n action, either in a court of the state in which it was rendered, or of any other state.
    2. A personal judgment, rendered against one over whom the court has no jurisdiction, is wholly invalid.
    3. Where, in a promissory note, payable at a future day, a warrant of attorney is incorporated, authorizing any attorney to appear for the maker in any court, and confess a judgment for the sum named in the note, etc., such warrant of attorney does not authorize the entry of an appearance, etc., before the maturity of the note; and an appearance prematurely entered by virtue of such warrant, confers on the court in which it is entered no jurisdiction of the person of the maker.
    Error to the Court of Common Pleas of Trumbull county. Reserved in the district court of said county.
    The action in the court below was brought by plaintiff in error, against defendants in error, upon three alleged judgments of the Court of Common Pleas of Mercer county, Pennsylvania, rendered at its May term, 1872, in favor of the plaintiff, and against the defendants. The defendant, Corll, answered, denying the existence and validity of the judgments sued upon, and setting up other grounds of defense. Upon the trial of the case by a jury, a bill of exceptions was taken by plaintiff, from which it appears that the plaintiff, to maintain the issues on his part, introduced as a witness George W. Carskadden, who testified that he was a resident of Greenville, Pennsylvania, was a lawyer by profession, and had practiced law in the State of Pennsylvania for thirty years last past, and that section 32 of the chapter on “ Judgments,” shown the witness, in a book called “ The Session Laws of Pennsylvania,” was a statute of said state, unrepealed and in full force in said state, and the law thereof; and, further to sustain the issues, the plaintiff introduced said section 32 of said statutes, which is in the words following, to wit: “ It shall be the duty of the prothonotary of any court of record within this commonwealth, on the application of any person being the original holder (or assignee of such holder) of a note, bond, or other instrument of writing, in which judgment is confessed, or containing a warrant for an attorney at law, or other person, to confess judgment, to enter judgment against the person or persons who executed the same, for the amount which, from the face of. the instrument, may appear to be due, without the agency of an attorney, or declaration filed with such stay of execution, as may be therein mentioned, for the fee of one dollar, to be paid by the defendant; particularly entering on his docket the date and tenor of the instrument of writing on which the judgment may be founded, which shall have the same force and effect as if a declaration had been filed, and judgment confessed by an attorney, or judgment obtained in open court, and in term time; and the defendant shall not be compelled to pay any costs or fee to the plaintiff’s attorney, when judgment is entered on any instrument of writing aforesaid.”
    And, to further maintain the issues on his part, offered three several exemplifications of record, to the admission of each of which the defendants objected, and the court-sustained said objection, and excluded each of said records, to which the plaintiff excepted. And there being no other evidence offered by either party, the cause was submitted to the jury, who found a verdict for the defendant. And, thereupon, the plaintiff" filed his motion for a new trial, which, being heard by the court, was overruled, and judgment rendered by the court against plaintiff on said ver•dict, to all of which action and ruling of the court plaintiff excepted.
    One of the exemplifications of record is as follows:
    “ Copy of Appearance JSntry, May Term, 1872.
    “ Seth Spier 401.] v. M. R. Kerney, Hugh Montgomery, and William Corll.
    “Judgment confessed by G. W. Carskadden, Esq., in :a warrant of attorney, dated the 19th day of August, a. d. 1872, against the defendants and in favor of the plaintiff, :for the sum of $280 (which includes $13.33J, attorney’s •commission), with costs of suit, release, and waiving exemption, etc. The note indorsed and guaranteed by L. H. .Mizner, on back of same.
    “ Filed and entered August 23, 1872.
    “ W. M. Slater, Prothonotary.”

      Copy of Note.

    •“ 266.66. Mercer, August 19,1872.
    “.Nine months after date, we, or either of us, promise to pay to Seth Spier, or order, $266.66, value received, being part payment of horses, buggies, and harness; and we jointly .and severally hereby authorize any attorney, or the prothonotary of Mercer county, or any other county in this state -or elsewhere, to enter and confess judgment against us, for the above sum, with costs of suit and attorney’s commis.sion of five per cent, for collection, release of errors, and without stay of execution; and we do waive the right and benefit of any law of this or any other state, exempting property, real or personal, from sale; and if levy is made on land, we do also waive the right of inquisition and consent to the condemnation thereof, with full liberty to sell the same on fi. fa., with release of errors therein.
    “ With interest from date. M. R. Kerney,
    “Attest: S. R. Mason. Hugh Montgomery,
    William Corll.”

      Then follows a declaration, signed by G. W.-Carskadden, as attorney for the plaintiff, and an appearance and confession of judgment, signed by the same Carskadden, as attorney for defendants, by virtue of the foregoing warrant ■of attorney. The other two exemplifications show similar entries of judgment, at the same date, and for similar amounts, the only difference being that, while the notes in all the cases bear the same date, and are for similar amounts, the note, in one of the cases, is payable in three months, and, in the other, in six months after date. Each of the exemplifications of the records appear to be formally authenticated.
    The plaintiff, by petition in error in the district court, sought to reverse this judgment, on the ground of error in excluding the several exemplifications of record offered in evidence by him on the trial. And the three judges of the -district court, being equally divided in opinion, as it is certified, on the question of error or no error in said judgments, ordered the cause to be reserved for decision by the -Supreme Court.

      Taylor $ Jones, for plaintiff in error :
    That a judgment properly obtained in a sister state can become the foundation of an action in the courts of this «tate, there can be little or no doubt (Constitution II. S., art. 4, § 10): “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings ■of every other state, and cougress may, by general laws, pi’escribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” By act •of congress, it is provided that the records and judicial proceedings of the courts of any state or territory shall be proven or admitted in any other court in the United States by the attestation of the clerk and the seal of the court :annexed, if there be a seal, together with the certificate of the judge, chief justice, or presiding magistrate, that- the .«aid attestation is in due form, and the said records and judicial proceedings, so authenticated, shall have such laith and-credit given to them in every other court within the United States as they have by law or usage in the courts of the state from whence they are taken (Revised Statutes U. S., § 905, ch. 17, title 13), and when the record of such judgment or legal proceeding shows a service, notice, or appearance, although not amounting to personal appearance, the jurisdiction of the court rendering such judgment will be presumed, and the judgment treated, not altogether as a foreign judgment, or merely prima facie evidence of debt, but is conclusive upon the merits, and retrial upon the same can not be had. Warren v. McCarthy, 25 Ill. 95 ; Buffum v. Simpson, 5 Allen (Mass.), 591; William M’Elmoyle v. Cohen, 13 Peters (U. S.), 312-325; Spencer v. Brockway, 1 Ohio, 257; Goodrich v. Jenkins, & Ohio, 43; Starbuck et al. v. Murray, 5 Wend. 148 ; Milne v. Van Buskirk, 9 Iowa (1 With.), 558; Lazin v. Westcott, 26 N. Y. (12 Smith), 146.
    But, in a suit upou a judgment rendered in a court of competent jurisdiction of another state, the defendant will not be permitted to attack its foundation by showing that the original cause of action was not such an one as would constitute a good cause of action in the state, when suit is brought upon such judgment. The effect of such judgment is to be determined by the laws of the state where such judgment was obtained; this alone is necessary to b¿ inquired of, and if such judgment is in accordance with the laws, practice, and usage of that state, and constitutes a valid judgment there, although it may not be a valid judgment under the laws and practice of other states, but may even appear harsh and erroneous, still, until reversed in the state where rendered, it is entitled to full faith and credit and to have the effect of a valid judgment, provided it has been properly authenticated. Phillips v. Godfrey, 7 Bos. (N. Y.), 150; Bramagim v. Chem, 4 Green (N. J.), 130; Clemmer v. Cooper, 24 Iowa, 185 ; Rankin v. Barnes, 5 Bush (Uy.), 20; Green v. Van Buskirk, 38 How. (N. Y.) Pr. 52; Weyman v. Zane, 3 Ohio, 305 ; Arndt v. Arndt, 15 Ohio, 33; Stockwell v. Coleman, 10 Ohio St. 33.

      In the case at bar, the only remaining question is, whether under the laws and practice in the State of Pennsylvania, the judgment, which is the foundation of this action, and which was obtained in that state, would have the effect of a valid judgment, and be enforced as such in the courts of Pennsylvania ?
    It is claimed, on the part of the defendant, that a judgment entered by warrant of attorney, during vacation, is not a valid judgment, and entitled to that effect in the courts of Pennsylvania. Evidence, however, has been introduced by the plaintiff to prove that section 80 of the chapter on “ Judgments,” contained in a book called “ The Session Laws of Pennsylvania,” was a statute of said state, unrepealed and in full force in said state; and it is therein expressly provided that judgments may he entered in this way by warrant of attorney, and a judgment so recovered is to have the same force and effect as a judgment on verdict,until reversed or set aside, and such has been the holding of the Supreme Court of the State of Pennsylvania. 1 Trowbuts & Haly’s Pr. 844; 4 Watts, 476; and in Supreme Court of Ohio, in case of Sipes v. Whitney et al., 30 Ohio St. 69.

      II. H. Moses, for defendant in error:
    Assuming that the section of the Pennsylvania session laws, referred to in the bill of exceptions, fully authorizes the prothonotary “to enter judgment” in the cases, we insist that in fact there was nothing in the transcripts, offered! as evidence, showing that he had, in fact, ever entered, judgments in them.
    The plaintiff’s causes of action were founded upon judgments obtained in his favor against the defendants, by the consideration of the Court of Common. Pleas of Mercer county, Pennsylvania. The rendition of these judgments by said coui't, is distinctly denied by the answer.
    A judgment is defined as being “ the- decision or sentence of the law, pronounced by a court, or other competent tribunal, upon the matter contained in the record.” 3 Blackstone’s Com. 395; Ætna Ins. Co. v. Swift, 12 Minn. 437.
    If, therefore, the records of which transcripts were offered as evidence, were judgments, they were such because they indicated and showed the sentence of the law, as pronounced by a court, or other competent tribunal. This they do not even profess to do. Neither of them, in form or substance, appear to have been intended as the entry of a judgment, nor do they indicate, in any maimer whatever, that any adjudication took place. The docket entries seem to be nothing more than mere memoranda by the prothonotary, that Gr. W.Carskadden had appeared, and in the name, and for the defendants, confessed judgment.
    Such memoranda are certainly not judgments; they are not the adjudications of any court, or any other competent tribunal. Taylor v. Bunyan, 3 Clarke, 474; Wheeler v. Scott, 3 Wis. 362 ; Martin v. Barnhardt, 39 Ill. 9; Hinson v. Wall, 20 Ala. 298; Faulks v. Killums, 54 Ill. 189 ; Wright v. Fletcher, 12 Vt. 431.
    Again, it is evident, from an examination of the record, in connection with the statute copied into the bill of exceptions, that the prothonotary did not understand that the entry made was an entry of an absolute judgment, for the reason that the statute did not authorize him to enter up any judgment at that time. The statute authorized him to enter judgment against the person or persons who executed the same, for the amount which, from the face of the instrument, may appear to be due. . The entry which was made by him seems to have been made on the 23d day of August, 1872, several months before any of the notes were due. Due, is defined to be “ what ought to be paid; what may be demanded.” (1 Bouvier’s Law Hie.) “ It differs from owing in this, that sometimes what is owing is not due; a note payable thirty days after date, is owing immediately after it is delivered to the payee, but it is not due until the thirty days have elapsed.” At the time the prothonotary entered upon the docket the fact that Carskadden had appeared and confessed judgment, nothing could rightfully be demanded upon the notes ; they were not due, and consequently no judgment could rightfully be entered up at that time, by the prothonotary. "With the confession entered upon the record, when, by the terms of the notes, they were due, he could enter judgment, but not before. He is not to be presumed to have done what it is evident he had no authority to do. He is rather to be presumed to have done that which he alone had authority to do. He had authority to enter upon the record the fact that a certain person had appeared, and confessed judgment, upon a certain claim ; and when, from the face of the notes, the money had become due, and was not paid, he might enter judgment.
    It seems to be insisted, by counsel for the plaintiff, that although these records do not show judgments, as understood and recognized by our law and practice, yet if good and valid as judgments in Pennsylvania, full faith and credit must be given to them here. But this can not help the plaintiff out of this difficulty, for the reason that it will be observed that there was no evidence that such an entry is a judgment, or has the effect of a judgment, by the laws and.practice of that state. In the absence of any evidence to the contrary, the court will presume that the law (except, perhaps, the statute laws), is the same in a sister state as in our own. In this case, therefore, the court must be governed by the laws of this state in determining whether the records offered showed that judgment had been rendered by the Court of Common Pleas of Mercer county.
   Scott, J.

The only question necessary to be considered in this case, is: Did the court of common pleas err in excluding from the consideration of the jury, the authentiticated transcripts, purporting to evidence the confessions of judgments by the defendants, in favor of the plaintiff, before the prothonotary of Mercer county, Pennsylvania ?

Assuming that the evidence offered and received fully showed a general authority conferred on the prothonotary, by the laws of that state, to enter judgment, as by confession, on cognovits, or upon warrants of attorney duly executed by a defendant, and purporting to authorize such confession of judgment, yet the jurisdiction of the tribunal entering a judgment in any particular case, may always be inquired into, when such judgment is sought to be made the foundation of an action, either in a court of the state in which it was rendered, or of any other state As was said in Pennywit v. Foote, 27 Ohio St. 615, “ every judgment depends, for its force and validity, on the competency and authority of the tribunal which pronounces it, and may be assailed by showing a want or failure of jurisdiction over the subject-matter or the person, even though absolutely conclusive in other particulars.” And, in that case, it was held, that “ neither the constitutional provision that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state, nor the act of congress, passed in pursuance thereof, prevents an inquiry into the jurisdiction of a court by which a judgment offered in evidence was rendered.” The numerous authorities cited in that case fully support this doctriue, and render a farther reference to them unnecessary.

Let us then inquire whether the tribunal entering orrendei’ing the judgments offered in evidence, had, at the time of its action in the premises, jurisdiction of the pei’sons of the defendants. It is conceded that no process was issued for their appearance in either of the cases, they, had no notice of the proceedings, actual or constructive; and made no appearance therein, other than an appeax’ance entex’ed for them by-an attorney, who claimed to have authority to appear for them, and confess judgments against them. The record exhibits the sole authority, in virtue of which he assumed to represent and bind them, by a confession of judgment. The debts xipon which judgments were confessed, were evidenced by thx*ee promissory xxotes, of which the first was payable in three months, the second in six months, and the third in nine months after date. Warrants of attorney were incorporated into each of these notes authorizing any attorney, etc., to enter and confess judgment against the makers for the amount of the note, with costs of suit and attorney’s commission of five per cent, for collection, release of errors, and without stay of execution, etc.

Four days after the date of these notes, an attorney appeared before the prothonotary of Mercer county, and, by virtue of these warrants of attorney,'confessed the judgments in question. Did these warrants of attorney confer such authority? We think not. The notes were each given on time. Each note with its warrant of attorney constitutes a single instrument of writing, which should be so construed as to make its parts consistent with each other. When a note is made payable, three, six, or nine months after date, it is clear that the maker does not intend that its payment may be enforced by judgment and execution immediately upon its delivery. These warrants of attorney, construed in connection with their context, can only be understood as authorizing the entry of an appearance, confession of judgment, etc., after the maturity of the respective notes. A different construction would be a fraud upon the makers. And if this be so, the entry of an appearance for these defendants, and the confession of judgments against them, by Mr. Carskadden, four days after the date of the notes, was wholly unauthorized, and the judgments sought to be given in evidence were utterly void for want of jurisdiction of the persons named as defendants therein. It follows that the court of common pleas did not err in excluding the exemplifications of the records offered in evidence, and its judgment is therefore affirmed.


author: Day, J.

text:
    Schaefler v. The City of Sandusky.
    A person who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, can not be regarded as exercising ordinary prudence, andi therefore, can not maintain an action against the city, to recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable.
    . Error to the District Court of Erie county.
    The original action was brought by the plaintiff in the common pleas of Erie county, to recover damages of the defendant for an injury sustained from a fall occasioned by snow and ice on a sidewalk of the city, which, the plaintiff alleges, it had knowingly suffered to accumulate on the sidewalk in such a manner as to become unsafe and dangerous. He alleges that, on January 25, 1873, at about the hour of noon, while he was walking along the sidewalk, and passing thereon upon said snow and ice, without want of due care on his part, by reason of the negligence of the defendant in not removing from the sidewalk the snow and ice, he slipped and fell, whereby one of his legs was broken.
    The defendant, among other defenses, claimed that it was not the duty of the city to keep the sidewalks clear from nuisances; that it had no control of the streets and sidewalks, other than what it had through its legislative power; and that the accumulation of snow and ice complained of, was the result of natural causes, for which the city was not responsible.
    On the trial, the jury returned a general verdict in favor of the plaintiff for five hundred dollars; and with the general verdict, returned a special verdict in response to interrogatories submitted to the jury by the court, as follows:
    1. “Was the sidewalk, at the time the injury happened, aside from the accumulation of snow and ice, in good con dition and repair ? ” Am. “Yes.” .

      2. “Was the obstruction complained of, an unnatural and artificial accumulation of snow and ice, or a natural and ordinary one?” Ans. “A natural one.”
    3. “ Did the plaintiff' see and know the nature and character of this obstruction before, and at the time of passing over it ? And did he knowing this voluntarily pass over it ? ” Ans. “ He did.”
    4. “ Could he have easily avoided it, either on the same walk, in the sti’eet, or on the opposite side, or on any other walk, and reach his destination ? If so, how, and in what way ? ” Ans. “ He could have avoided it.”
    The defendant moved the court to render judgment on the special findings, in favor of the defendant, notwithstanding the general verdict in favor of the plaintiff. The court sustained the motion, and rendered judgment in favor of the defendant.
    The plaintiff’ excepted, and prosecuted his petition in error in the district court; and that court affirmed the judgment of the common pleas. To reverse these judgments, he prosecuted his petition in error in the Supreme Court.

      H. & L. H. Goodwin, for plaiutiff's in error:
    The city was liable. Shearman and Redfield on Negligence, §§ 395, 414; The City of Providence v. Clapp, 17 How. 161; Loker v. Brookline, 13 Pick. 346, 347; West v. Village of Brockport, 16 N. Y. 163-5 note; Chicago City v. Robbins, 2 Black, U. S. 418 ; Chase v. Cabat Bridge Co., 6 Allen, 512; Wallace v. Mayor, etc., 2 Hilton, 440 ; Reed. v. Northfield, 13 Pick. 94-8; Smith v. Sowle, 6 Allen, 39; Snow v. Housatonic R. Co., 8 Allen, 441, 450, and 137; Frost v. Waltham, 12 Allen, 85, 86; Whittaker v. West Boylston, 97 Mass. 273; Fox v. Sackett, 10 Allen, 535; Filer v. N. Y. Cent. R. R. Co., 49 N. Y. 47; Barton v. St. Louis R. R. Co., 52 Mo. 263; Wharton on Negligence, § 403, and authorities cited. Thurber v. Hudson River R. R. Co., 60 N. Y. 331, 332.

      E. B. & C. W. Sadler, for defendant in error:
    The plaintiff was guilty of contributory negligence, and can riot recover. Timmons v. Railroad, 6 Ohio St. 105: Button v. Railroad, 18 N. Y. 248; Harlow v. Humiston, 6 Cow. 189; 7 Lansing, 11; Wharton on Negligence §§ 402, 408; Davenport v. Buckingham, 37 N. Y. 568; Hubbard v. Concord, 35 N. H. 52; Horton v. Ipswich, 12 Cush. 488; Wilson v. Charleston, 8 Allen, 137; James v. San Francisco, 6 Cal. 528; 61 Id. 155; 54 N. Y. 245; 61 Barb. 437; 61 Barb. 580.
   Day, J.

The liability of the city for the unsafe condition of the streets, especially when it arises from natural causes, is contested; but the view we take of the case renders it unnecessary to determine that question; for, if it exists, and the negligence of the city be conceded, the plaintiff was not entitled to recover, if his injury resulted from the want of ordinary care on his part. His negligence is claimed to be established by the special verdict; and we think the question made on this point is decisive of the case.

In rendering .a general verdict in favor of the plaintiff, the jury necessarily found that he was without fault. Was this finding consistent with the facts specially found by them ?

The plaintiff charged that the defendant suffered snow and ice to accumulate and remain on the sidewalk, in such 'manner that the sidewalk “became unsafe and dangerous.” The unsafe and dangerous character of the obstruction was the gravamen of the complaint; for, if it did not render the sidewalk unsafe, there was no such negligence of the city as would afford a ground of complaint. It must be assumed, then, to entitle the plaintiff to recover, that the obstruction was of an unsafe and dangerous character; and the jury must have so found, or they could not have found against the defendant.

In regard to this unsafe and dangerous obstruction, the jury, by their special verdict, found that, as matter of fact, the plaintiff knew its nature and character before he attempted to pass over it; and that, having such knowledge, he voluntarily passed over it, when he could have avoided it, and reached his destination without going over it. Indeed, it is fairly inferable from the special findings that he could have “ easily” avoided the obstruction. Under such circumstances it was his duty to avoid the danger.

If the snow and ice presented a dangerous obstruction, which the defendant was bound to remove, so that it was negligence to leave it on the sidewalk, it must follow, since its “ nature and character ” were known to the plaintiff, that it was imprudence in him to venture upon it, or that, if it was prudent for him to pass over it, he did not exercise due care.

The case, as found by the special verdict, is not one where there is an obstruction not known to be perilous. In that class of cases negligence can not be imputed to one who uses such carefulness as a man of ordinary prudence would exercise. But where there is danger, and the peril is known, whoever encounters it, voluntarily and unnecessarily, can not be regarded as exercising ordinary prudence, and therefore does so at his own risk. Darken v. City of Troy, 61 Barb. 437; Evans v. City of Utica, 69 N. Y. 166 ; Wilson v. City of Charlestown, 8 Allen, 137 ; Belton v. Baxter, 54 N. Y. 245 ; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66. This was the case of the plaintiff, as shown by the special verdict. He was, then, not without fault on his part. But the general verdict necessarily exculpates him from negligence. The special and general verdicts are therefore inconsistent. In such eases, the former controls the latter, and the court may give judgment accordingly.” Code, § 277.

It follows that the court did not err in refusing to render judgment on the general verdict, nor in rendering judgment on the special verdict in favor of defendant.

Judgment affirmed.