author: Spear, J.

text:
    The Interurban Railway & Terminal Company et al. v. Hancock.

      Care required of passengers — .On interurban electric car — Negligence for passenger to project arm out of car window, when— Question of iron bars across window of car — Contributory negligence — Instructions to jury — Liability of railway corporations.

    1. A carrier of passengers is bound to exercise the utmost practicable care and diligence to secure the safety of the passenger, but a duty of reasonable care for his own safety as well rests upon the passenger himself.
    2. It is negligence as matter of law for a passenger traveling on a rapidly rnovmg railroad car to intentionally and needlessly project his arm or a part thereof out of the window of the car.
    3. In a suit against an interurban electric railway company for injury to a passenger by reason of his arm being struck by. a car passing upon an adjoining track, it is not error for the court to instruct the jury that if they find that there were four iron bars extending horizontally'across the window of the car, equally distant from each other, the top one approximately twelve inches from the window-sill, and that plaintiff whiie sitting in the car permitted his arm or any part thereof to extend or project out beyond or over the rods, and that said act directly contributed to the accident, the plaintiff would be guilty of contributory negligence and cannot recover.
    (No. 9814
    Decided October 16, 1906.)

      Error to the Circuit Court of Clermont County.
    Hollis Hancock, defendant in error, brought action in the common pleas of Clermont to recover for an injury received while a passenger on a car of The Interurban Railway & Terminal Company, being operated' at the time on a double track railway used in common by that company and by The Cincinnati, Georgetown & Portsmouth Railroad Company, both operating electric cars independently of each other. His amended petition charges that the accident took place June 5, 1903. The car on which he was riding was going east on Eastern' avenue, in the city of Cincinnati, and at the same time a car of the other company was going west, and both at the time on a slight curve. Plaintiff took a seat upon the left side of the car and rested his left arm upon a rail at one of the windows, and while thus seated was struck by a car or some object extended therefrom owned and operated by The Cincinnati, Georgetown & Portsmouth Company. The bar on which plaintiff’s arm rested was so located that passengers would naturally rest their arms thereon, and that passengers had been in the habit of so resting their arms, of all of which defendants had knowledge. No notice or warning was given plaintiff. The left arm was fractured below the elbow and a comminuted fracture resulted at the elbow. The negligence charged was that of operating cars too wide for the space between the tracks, and for running past each other at a dangerous and unreasonable rate of speed, and in not providing proper guard screens or other appliances on the cars and not warning passengers of danger.

      By its answer the Interurban Company admitted that plaintiff was a passenger on one of its cars at the time and place alleged, and denied all other allegations. The other defendant denied all the allegations of the petition, and both defendants averred that whatever injury the plaintiff received was caused by his own negligence and want of proper care.
    It appeared by the testimony that plaintiff was seated in the last seat in the car, on the left-hand side at an open window. All the windows of the car were open, the window-frame dropping down into a box arrangement. The sill was about six inches above the seat. On the outside of the car, and across all the windows, the ends as well as sides, were four iron rods or bars equally distant from each other, the top rod being approximately twelve inches above the window-sill. The plaintiff placed his left arm on the top of and over the rods. He described it by saying: I was leaning back with my arm resting on the rod of the car, my hand on the inside. The accident occurred at a slight curve in the tracks, and was occasioned by the arm being struck by the west-bound car. “I had my arm,” the plaintiff further stated, “resting on one of these rods across the window, and was struck by a Cincinnati, Georgetown & Portsmouth car; I saw the car and the handles on the side. It was an open car.”
    The tracks were owned by the Cincinnati traction company, and. the defendants operated their' interurban cars thereon by a traffic arrangement recently entered into. Evidence given as to the distance between the two cars on the inside tended to show that the space between the closed car and the handles of the open car was from three to four inches, but as the negligence of the defendants seems to be practically conceded, and was assumed by the trial court, it is not necessary to take further space as to this phase of the case. The plaintiff was a stationary engineer, employed at the water works in the village of California, and took the car at Cincinnati to go to that place. He had ridden upon the new cars operated by defendants over this part of the road once or twice before, but it does not appear that on either of those occasions he had ridden on the side of the car next the other track.
    In the charge to the jury the trial judge, among other things, instructed them that: “If you find from the evidence that the plaintiff, at the time of the alleged accident and injury, was riding in one of the cars of The Interurban Railway & Terminal Company, one of the defendants herein, and you further find that there were four iron bars extending horizontally across the windows of said car, equally distant from each other, the top rod of which was approximately twelve inches from the window-sill, and you find that plaintiff, while seated in this car, permitted or allowed his arm or any part thereof to extend or project out beyond or over said rods, and that said act of plaintiff directly contributed to the accident, then I charge you that the plaintiff was guilty of contributory negligence and can not recover, and your verdict should be for the defendants.” Other parts of the general charge were in consonance with this instruction, and this constituted the law of the case respecting the matter of contributory negligence for the jury’s guidance. A verdict for defendants was returned which was followed by judgment thereon. This instruction the circuit court held to be erroneous and the judgment was by that court for that reason reversed. The defendants below bring error.

      Mr. Frank F. Dinsmore; Mr. Charles M. Leslie and Messrs. Nichols & Nichols, for plaintiffs in error.
    Projecting arm out of a window of a steam railroad car is negligence as a matter of law. Dunn v. Seaboard, etc., R. Co., 78 Va., 645; Richmond, etc., R. Co. v. Scott, 88 Va., 958; Holbrook v. Utica, etc., R. Co., 12 N. Y., 236, 244; Carrico v. W. Va. C. & P. R. Co., 35 W. Va., 389.
    It has been determined by the great weight of authority that a passenger on a steam railway car who permits his arm or any part of his body to extend out of the window beyond the side of the car, is as a matter of law guilty of contributory negligence and can not recover, if injured, even though the window is neither barred nor screened in any manner.
    The reasons usually given for this proposition of law in the various cases referred to, are the speed of the train, the proximity of other tracks and obstacles along the line of the road, the necessity which passengers are under of conforming to the accommodations provided for them, the necessary requirement that they should remain within the cars and not expose themselves beyond the same, and the general and well known circumstances under which railroad trains are usually operated. Todd v. Old Colony & Fall River Rail

      road Co., 3 Allen, 18; Todd v. Old Colony & Fall River Railroad Co., 7 Allen, 207; Indianapolis & Cincinnati Railroad Co. v. Rutherford, 29 Inch, 83; Pittsburg & C. Railroad Company v. Andrews, 39 Md., 329; Morel v. Mississippi Valley Life Insurance Company, 4 Bush., 535; Louisville & Nashville Railroad Co. v. Sickings, 5 Bush., 1; 68 Ky., 1; Favre v. Louisville & Nashville Railroad Co., 91 Ky., 541; Clark’s Administrator v. Louisville & Nashville Railroad Co., 101 Ky., 34.
    The leading cases adopting the contrary rule are New Jersey R. Co. v. Kennard, 21 Pa. St., 203, and Spencer v. Milwaukee & P. du C. R. Co., 17 Wis., 488. The argument in these cases is practically the same. It is that.the seats in railroad cars are so constructed that it is convenient for a passenger to rest his arm on a window-sill and that all persons unconsciously do so while riding in cars. A custom, it is claimed, which is so general among people, can not be said to be a negligent one or one which in law is imprudent. These cases claimed the rule to be that it was not negligence, as a matter of law, to protrude the arm from the window, but it was a question for the jury to determine.
    This argument has been repudiated in Pennsylvania, and the Kennard case has been directly overruled in Pittsburg & C. R. Co. v. McClurg, 56 Pa. St., 294. The Wisconsin case has been cited in almost all of the cases above referred to and the argument given due consideration, but not followed.
    In Georgia, etc., Ry. Co. v. Underwood, 90 Ala., 49, the court particularly takes up the Wisconsin case, and the argument made in support of it, and refuses to follow that argument, claiming that it can not be said to be the act of a prudent man to project his arm outside the window, whether the mere laying it upon the sill be such an act or not.
    The Wisconsin case has been followed in Clerc v. Morgan’s, etc., R. R. & S. S. Co., 107 La., 370. But the court deciding that case did not seem to be aware of the array of cases on the other side of the proposition. And the Clerc case was followed without the citation of additional authority in Kird v. New Orleans, etc., Railroad Co., 109 La., 525.
    Another decision to the contrary is McCord v. Atlanta & Charlotte Air Line Railroad Co., 134 N. C, 53. The subject is discussed beginning on page 57 of the decision. The Kennard case is there cited as authority from Pennsylvania, apparently without knowing that it had been reversed by the court deciding it in the McClurg case. The Spencer case from Wisconsin is also cited. The other cases relied on are those relating to street railways which are hereinafter referred to in this brief. The line of authorities directly on the proposition from which we have quoted are not cited. The decision was undoubtedly due to the •well known criticism of the general rule by Thompson in his work on Negligence, Vol. 3, paragraph 2972, page 435.
    Beach, in his work on Contributory Negligence, Sections 155 to 159, inclusive, examines the rule and the cases in support of it, and considers the other view advocated by Thompson. The discussion is probably the best one found in any of the text-books.
    Is the same rule applicable with reference to an arm or elbow projecting from an open street car?
    The reasons given in the case of steam railroads are just as applicable to electric street railroads. Such roads operate cars on double tracks where they are necessarily close together, the speed is rapid, the accommodations for the comfort of the passenger are the same, the danger of exposing any part of the body beyond the car is just as great, and the general circumstances under which such roads are operated serve to warn the passengers to the same extent.
    The force of these reasons and the similarity between street cars and steam cars was recognized in People’s Pass. Ry. Co. v. Lauderbach, 4 Penny., 406.
    There are some decisions often cited as Establishing a different rule in street car cases, but an examination of them shows that they can be distinguished upon satisfactory grounds. The leading case in this regard is Francis v. New York Steam Co., 114 N. Y., 380.
    In Tucker v. Buffalo Railway Co., 53 Appellate Division, 571, a case somewhat similar was decided on authority of the Francis case without further examination.

      Germantown Passenger R. R. Co. v. Brophy, 105 Pa., St., 38, is often cited as establishing a contrary rule in street railroad cases.
    It will thus be seen that this case is not an authority to the effect that it is not negligence per se to ride with the arm out of the window of a street car. The arm in that case was wholly within the car. The Supreme Court of Pennsylvania is also on record as following the same rule in street car cases as in steam car cases, as we have above referred to in the Lauderbach case.

      Sanderson et al., v. Frazier, 8 Colo., 79, is. frequently cited as maintaining a different rule than the steam railroad rule. A reference to that case, however, will show it to be a stage coach case and the argument of the court drawing a distinction between a railroad car and a stage coach is so satisfactory as to withdraw that case from any consideration whatever on this subject.

      Seigel v. Eisen et al., 41 Cal., 109, which is frequently cited, was that of a man riding on the back platform of a street car, having hold of a railm-gTprovided for that purpose, and being inju-redj*by" a vehicle running against the car.' It can-not.'be considered as shedding much light on this subject.
    The case which contains the best argument for ü difference in the rule is Miller v. St. Louis R. Co., 5 Mo. App., 471.
    It is apparent that the distinction here drawn between street and steam cars arising from the difference in motive power, while applicable as between steam power and horse power, is not so effective when horse power gives place to electric power. This case, however, follows the Francis case in New York to the extent of deciding that no general rule can be laid down, but that each case must be determined from its own peculiar circumstances. We are warranted in assuming that in the views of the court, cases would arise in which it would be negligence per se to expose the arm from the window of a street car while in other cases it might not be.

      Dahlberg v. Minneapolis Street Railway Co., 32 Minn., 404, is another horse car case. The strongest case undoubtedly is Summers v. Crescent City R. Co., 34 La. Ann., 139. The Louisiana Supreme Court dissents from the general steam car rule, as we have heretofore noted in the Clerc case and the Kird case. The same court had occasion to consider a similar question in Moore v. Edison Electric Illuminating Co., 43 La. Ann., 792. The argument that the exigency of the climate of New Orleans allows a man to reasonably protrude his elbow from the window of a car is not necessarily applicable in Ohio. Schneider v. New Orleans & C. R. R. Co., 54 Fed., 466.
    This case differs from all street car cases in that the car was an interurban car and bars were placed across the windows as a warning.
    Whatever the rule may finally be determined to be in horse car cases or in ordinary electric street railway cases, is immaterial in this case, for the reason that we are here concerned with an interurban car operating from a terminus in the city to and beyond the city limits a considerable distance, and the existence of four iron rods across the window equally distant from each other, ^the top rod approximately twelve inches from the window-sill.
    There can be no doubt of the purpose of these rods. That they were placed there as a warning to the passengers must be apparent to every one. It is true that counsel for the defendant in error makes an effort to claim that these rods were placed in their position as a protection to the window, but this argument is manifestly absurd. They afford no protection to the window, as they extend only a part of the way from the windowsill.
    The various cases which we have referred to under the second subdivision of this argument in discussing the street railroad rule admit that if there is any warning of any kind it is sufficient. The early decision of the court in Pennsylvania in the Kennard case claimed that it would be easy for a steam road to place small bars or a screen across the lower part of the window as a warning. Both the Summers and the Dahlberg cases, which are the strongest ones against our claim, recognize the position which a passenger would be in if there should be any warning of any kind or any notice brought to his attention not to project his arm from the car window. Here we have the rods as a warning and the principle applicable has been decided by this court in L. S. & M. S. Railway Co. v. Ehlert, Admr., et al., 63 Ohio St., 320.

      Mr. Prescott Smith and Mr. D. W. Murphy, for defendant in error.
    The law applicable to this case is that which applies to street railways within the limits of a city. C., L. & A. Electric R. R. Co. v. Lohe, Admr., 68 Ohio St., 110.
    The defendant in error had worked twelve hours on the day of the injury as a stationary engineer, and in taking an easy position followed an ordinary human instinct. Anybody who has observed and is familiar with the habits of passengers upon street cars knows that the people are in the habit of riding with their arms upon the window-sills and rails at the side of the cars, and upon other convenient rests. It is natural to all human beings to take an easy position. Hutchinson on Carriers, 2d Edition by Mechem, Section 659-
    It was shown conclusively in the trial of this case that passengers were in the habit of resting their arms upon the iron rods, and in view of this trait of human nature and proof of this habit, how can a court arbitrarily say that the man of ordinary prudence would not do so. The court assumed that these rods were a warning. If they were so intended, which the defendant in error denies, the sufficiency of the warning should have been submitted to the jury. Instead of acting as a warning, they were in fact a trap. They appeared to have been put along side of the windows for the reason that the window-sill was very little above the seat, and packages and children might fall out of the window. If they had been intended to protect the passenger from extending his body from the car, a netting should have been used so as to keep childrens’ arms in. The court had no right to assume and state to the jury what the purpose of these bars were, or that the purpose was accomplished.
    The charge of the court was to the effect that if the defendant in error extended his arm over the bar at all, he was guilty of contributory negligence. According to this charge, if the arm of the defendant in error were outside the fraction of an inch, he was guilty of contributory negligence as a matter of law. As to when the question of contributory negligence shall be submitted to a jury as a matter of fact, was clearly expressed. Cincinnati St. Ry. Co. v. Snell, 54 Ohio St., 197.
    To the same effect is the case of The Wichita R. & L. Co., 74 Pac. Rep., 1104; and the case in Maryland, Jenkins v. B. & O. R. Co., 56 Atlantic Rep., 966.
    Many reasonable minds have decided that the fact that a passenger extends his .elbow from a window a few inches is not, in law or fact, contributory negligence. There is a well defined distinction between street car companies and steam railroads in respect to liability when a passenger is injured by reason of his body extending beyond the line of the car. This is' necessarily so for the reason that street cars are crowded frequently to their utmost limits, people ride upon running boards, they fill the front and rear platforms, they hang on to the sides and rails of the cars, and they are run at a different rate of speed and through the streets of cities, and everybody regards riding upon a street car as less dangerous than riding upon a steam car and acts differently. Notwithstanding this well marked distinction, many courts have held that it is not contributory negligence, even in the case of steam railroads, for a passenger to slightly extend.his elbow over •a window-sill. Hutchinson on Carriers, Section 658a; Hutchinson on Carriers, 2d Edition by Mechem, Section 659, entitled “The True View”; Beach on Contributory Negligence, Section 296; 2 Shearman & Redfield on Negligence, 4th Ed., Section 519; 2 Woods R. Law, 1103, Section 303; Bishop’s Non-Contract Law, Sections 1106-1107.
    We call particular attention to the case of Summers v. Crescent City R. Co., 34 La. Ann., 139. Also to the case of Tucker v. Buffalo Railway Co., 53 Appellate Division, 571, where a passenger had his elbow three inches out of the window. This case was affirmed by the Court of Appeals" of New York unanimously, 169 N. Y., 589. McCord v. Atlanta & Charlotte Air Line Railroad Co., 134 N. C., 53; Thompson on Negligence, Vol. 3, par. 2972, 435; Dahlberg v. Minneapolis St. Ry. Co., 32 Minn., 404; Spencer v. Milwaukee & P. du C. R. Co., 17 Wis., 487; Francis v. N. Y. Steam Co., 114 N. Y., 380; Breen v. N. Y. C. & H. R. R. Co., 109 N. Y., 297; Seigel v. Eisen et al., 41 Cal., 109; Clerc. v. Morgan’s, etc., R. R. & S. S. Co., 107 La. Reports, 371; Sanderson et al v. Frazier, 8 Colo., 79; Booth on Street Railways, Section 344.
    There are a great many decisions to the effect that the question whether a passenger is guilty of contributory negligence must be submitted to a jury when he is injured by riding on the running-board of a car. Fort Wayne Traction Co. v. Hardendorf, 72 N. E. Rep., 593; Kreimelmann v. Jourdan, 80 S. W. Rep., 323; Allen v. St. Louis Transit Co. et al., 183 Mo., 411; Dickinson v. Port Huron, etc., Railway Co., 53 Mich., 43; Jones v. United Railways & Electric Co., 57 Atl. Rep., 620.
   Spear, J.

It is apparent from the testimony of the plaintiff himself, that a presumption arises that his arm, or a portion of it, at the time of the accident, extended out beyond the bars, and this presumption is strengthened by the character of the injury and by the absence of any showing that the bars themselves, or any part of them, were struck by the blow by which the arm was broken. The only question being that of contributory negligence on the part of the plaintiff, this state of facts presented the question, as a matter of law, whether or not it is negligence for a passenger to purposely and unnecessarily extend his arm out of the window beyond the side of the ear. This question, as already stated, was adjudged in one way by the common pleas court and in the contrary way by the circuit court. To determine which of these views is the correct one is the question before this court.

The precise question has not heretofore been presented to this court with respect to passengers upon electric cars, nor do we find many cases bearing close relation to this one in other jurisdictions. There are, however, many decisions involving like accidents upon cars propelled by steam, which have disclosed a diversity of opinion between courts of different states. Speaking in general terms, it may be stated that projecting an arm out of the window of a steam railroad car is held’ to be • negligence per se by courts of last resort in the states of Massachusetts, Pennsylvania, Maryland, Indiana, Virginia, Kentucky, West Virginia and Alabama, and by some text-writers of excellent standing, while the contrary doctrine, i. e., that it is a question to be determined by the facts of each case, and therefore always for the jury, is held in Wisconsin, Louisiana and North Carolina, and by some text-writers of respectable standing. The reasoning in support of the holding of negligence per se is well stated by Thompson, J., in The P. & C. R. Co. v. McClurg, 56 Pa. St., 294, thus: “When a passenger on a railroad purchases his ticket it entitles him to a seat in the cars. In the seat, no part of his body is exposed to obstacles outside of the car. Pie is secure there, ordinarily, from any contact with them. Where he is thus provided with a seat, safe and secure in the absence of accident to the train, and the carrier has a safe and convenient car, well conducted and skillfully managed, his duty is performed towards the passenger. The duty of the latter on entering arises, namely, that he will conform to all the reasonable rules and regulations of the company for occupying, using and leaving the cars; and, after doing so, if injury befall him by the negligence of the carriers, they must answer; if he do not so conform, but is guilty of negligence therein, and is injured, although there may be xxegligence on part of the carrier, their servants and agents, he can not recover. * * * A passenger, on entering a railroad car, isoto be presumed to know the use of a seat, and the use of a window; that the former is to sit in, and the latter is to admit light and air. Each has its separate use. The seat he may occupy in any way most coxnfortable to himself. The window he has a right to enjoy — but not to occupy. Its use is for the benefit of all, not for the comfort alone of him who has by ac’cident got nearest to it. If, therefore, he sit with his elbow in it, he does so without authority; and if he allow it to protrude out, and is injured, is this due care on his part? He was not put there by the carriers, nor invited to go there; nor misled in regard to the fact that it is not a part of his seat, nor that its purposes, were not exclusively to admit light and air for the benefit of all. His position is, therefore, without authority. His negligence consists in putting his limbs where they ought not to be, and liable to be broken, without his ability to know whether there is danger or not approaching. In a case, therefore, where the injury stands confessed, or is proved to have resulted from the. position voluntarily or thoughtlessly taken, in a window, by contact with outside obstacles or forces, it can not be otherwise characterized than as negligence, and so to be pronounced by the court. This is undoubtedly the rule in Massachusetts: Todd v. The Old Colony Railroad Co., 3 Allen, 21; and again in 7 Allen, 207.” In P. & C. Railroad Co. v. Andrews, 39 Md., 329, the holding is: “If a passenger of mature years, voluntarily or inattentively projects his elbow or arm out of the window of a railroad car in which he is traveling, and it is injured by coming in contact with a freight car standing on a siding near the main track of the railroad, he -is not entitled to recover damages for such injury from the railroad company. The placing of his arm out of the window is an act of contributory negligence on his part, and the court should so instruct the jury, as matter of law, notwithstanding the company may have been guilty of negligence in permitting the car on the siding to be placed too near the track of the passing train.” In Ga. Pac. Railway Co. v. Underwood, 90 Ala., 49, it is observed in the opinion by McClellan, J., that: “This question is an open one in Alabama. We are, however, satisfied with the rule as formulated and supported by the great number of adjudged cases, and the texts to which we have referred. The reasons upon which they base the doctrine appear to be eminently sound. Windows are not provided in cars that passengers may project themselves through or out of them,* but for the admission of light and air. They are not intended for occupation, but for use and enjoyment without occupation. No possible necessity of the passenger can be subserved by the protrúsion of his person through them. Neither his convenience nor comfort requires that he should do so. It may be, doubtless is, true, that men of ordinary prudence and care habitually lean upon, or rest their arms upon the sills or windows by which they ride. But this is a very different thing from protrusion beyond the outer edge of the sills, and beyond the surface of the car. We can not concur in the assumption of the Wisconsin court, that prudent men are habitually given to thus projecting themselves from the windows of moving trains. Judge Thompson, 'who evinces an inclination to agree with that court, fails to indorse this assumption as to the habits of prudent men, which is the key-stone to the position announced by -it. He says: ‘It is perhaps not too strong a statement, that no person ever traveled on a railway train without at some time resting his arm on the window-sill at least, if not permitting it to protrude slightly. Conduct which is universal, is necessarily that of persons reasonably prudent’ (Thompson Carr. Passengers, p. 258). But the conduct which is assumed by him to be universal, is that of resting the arm on the sill, not permitting it to protrude even slightly' beyond. The former, prudent men may do; but we can not conceive that the latter is an act which a man of reasonable care and prudence would ever voluntarily do, much less that it is the habit of such men to so act. The former, under ordinary circumstances, is not negligence. The latter, according to the overwhelming preponderance of authority, based on sound reason, as we conceive, standing by itself, is always negligence per se, which will defeat a recovery for any injury to which it proximately contributed.” The holding of the court is that: “It is negligence per se, to be so declared by the court as matter of law, for a passenger on a steam railway to protrude his arm, hand or elbow through the window of the car while in motion, beyond the outer edge of the window, or outer surface of the car; and such negligence on his part, contributing proximately to an injury received by collision with an object passing near by, bars a recovery for damages.”

As before stated the.opposite doctrine is maintained in a number of decisions. Probably that contention is not better stated than by Cole, J., in Spencer v. The M. & P. du C. R. R. Co., 17 Wis., 487. We quote: “The party must be entirely free from negligence which contributes to the injury, and it was for the jury to say, under all the circumstances, whether the plaintiff was wanting in care and attention or not. This, it is obvious, must be so, unless the court is authorized in saying, as a matter of law, in every case, that a person who extends his hand or arm in the slightest degree out of the window of a railroad car, while the train is in motion, is chargeable with negligence, and can not recover damages if injured while in this position by the carelessness and negligence of the agents and servants of the company. Can the court lay down any such fixed, unbending rule, which is applicable to all cases and all circumstances? It appears to us clearly it can not. And certainly, when we consider the manner in which railroad cars are usually constructed, with the windows so that they can be opened, and arranged at a sufficient height from the seat so that passengers will almost unconsciously place their arms upon, the sill for support, there being no bars or slats before the window to prevent their doing so, then to say that if a passenger’s arm extends the slightest degree beyond the outside surface, he is wanting in proper care and attention, and that if an injury happens, he can not recover, because his conduct must have necessarily contributed to the result, appears to us to be laying down a very arbitrary and unreasonable rule of law. It is probably the habit of every person while riding in the cars to rest the arm upon the base of the window. If the window is open, it is liable to extend slightly outside. This we suppose is a common habit. There is always more or less space between the outside of the car and any structure erected by the side of the track, and must. necessarily be so, to accommodate the motion of the car. Passengers know this, and regulate their conduct accordingly. They do not suppose that the agents and managers of the road suffer obstacles to be so placed as barely to miss the car while passing. And it seems to us almost absurd to hold that, in every case and under all circumstances, if the party injured had his arm the smallest fraction of an inch beyond the outside surface, he was wanting in ordinary care and prudence.”

The C. & A. R. R. Co. v. Pondrom, 51 Ill., 333, is hardly in point because the rule of comparative negligence, not recognized in Ohio though then held in Illinois, is applied to the facts. The court seems to have regarded the act of the passenger in permitting his arm to slightly project outside of the window as a negligent act, slight, however, in comparison with the gross negligence of the company in permitting its freight cars, or other permanent bodies, to stand so near its tracks that passing trains would come within a few inches of such bodies, and for this reason the judgment was allowed to stand.

Other holdings of like import with that of the Wisconsin case are found in the reports of courts of last resort in the states of Louisiana and North Carolina, and some text-writers follow these cases. In this conflict of authority it would be useless to attempt to reconcile the differing decisions. We are, however, of opinion that the weight of judicial expression is with the conclusion of negligence per se where the passenger unnecessarily and heedlessly protrudes his arm beyond the window. And, after much consideration and reflection, we are also of opinion that this conclusion is supported by the sounder reasoning. The quotations hereinbéfore given from the Pennsylvania and Alabama cases adequately, and, as we think satisfactorily, support the conclusions of those courts. It is not intended to abate or modify the rule that the common carrier is bound to exercise the utmost practicable care and diligence to secure the safety of the passenger, but a duty of reasonable care as well rests upon the passenger himself. He must not heedlessly expose himself to danger, but is as much required to use reasonable care to avoid injury as the carrier is to use the greatest degree of care to protect the passenger. He must not voluntarily expose himself to needless peril. If of ordinary intelligence, the traveler knows the mode in which railroads are constructed, and the rapid rate at which trains move. He knows that on the outside are posts and barriers near to the track, and that where there is a double track, cars operated at a rapid rate are constantly passing in close proximity. With this knowledge on the part of the passenger it must be obvious that the extension of any part of his body on the outside of the car is attended with more or less risk, more or less danger. It may be debatable as to the extent of the danger under differing circumstances, but it can not admit of debate that the act is risky and invites danger. It is not a case where it ought to be said that different minds may reach different conclusions, and therefore presents a situation requiring the submission of the question of negligence or no negligence in the abstract to a jury, because such requirement exists only where different reasonable minds may reasonably differ. Nor is the objection met by the proposition that many people thus expose themselves. Many people who travel are all the time taking needless risks, but it does not follow that the taking of such risks is the habit of ordinarily prudent people. Persons are constantly jumping ón and off of cars while in motion, and many alight with their faces to the rear of the car. So, too, it is within the observation of all who have watched the management of trains, especially in the 'neighborhood of railroad yards, that persons ride on the cowcatcher or pilot even on trains running rapidly, and many of our fellow-citizens, usually those in humble station it is true, ride constantly on the bumpers of freight cars. But this does not make such acts the conduct of ordinarily prudent persons. That any of these acts have or not contributed to any injury received by the passenger in the given instance, admits of debate, and thus makes it proper to submit the question to a jury, but that they are negligent acts in themselves involving more or less risk can not rationally be disputed. Negligence is said to be such an inadvertent imperfection, by a responsible human agent, in the discharge of duty, as naturally may produce damage, and these acts are negligent acts because it is the duty of every human being to protect himself. Any act, therefore, which subjects the doer of it to unnecessary danger is a breach of that duty and in the last analysis is negligence. In failing to give proper effect to these considerations, the reasoning of the court in the Wisconsin case, and in the cases which have followed it, appears to us to be at fault; the duty of the passenger possessing intelligence which enables him to foresee and avoid danger, and to exercise ordinary prudence to escape it, seems not to have been given due weight. And even in the Wisconsin case, as appears by the language of the learned judge who delivered the opinion, if there had been bars or slats before the window, the judgment might have been different. So that, should our conclusion on the abstract question of negligence be thought unsound, it is to be noted as of importance that our case is differentiated from the Wisconsin and other like cases in that in the case at bar there were bars across the window at the time of the accident..

Assuming, therefore, that the rule respecting the conduct of a passenger on a steam car is to forbid his extending his arm out of the car window without himself assuming the risk of injury, should a different rule be applied to a passenger on an interurban electric car? We are of opinion that there should not be. As such cars are now operated throughout the country they run at a rapid rate. Their. construction ordinarily, if not necessarily, involves the maintenance near the tracks of poles and barriers of various kinds. Cars running in opposite directions, as well on switches as where there is a double track, are often necessarily run near together. There is, perhaps, more necessity for locating tracks near together inside of municipalities than in the open country, and upon narrow streets it often happens that the company is required to lay the rails at less distance apart than they would prefer to place them, because.of crowded conditions and the requirements of the municipal authorities. To say that, as. a rule of law, a passenger on such car may be heedlessly negligent, exposing his person to needless danger, and visit the consequences on the interurban company upon showing negligence on its part, appears to us to be without reason. Nor is it supported by authority. On the contrary the generally recognized rule is that the passenger can not cast upon the carrier responsibility for an event, which, except for his own contributing negligence, would not have happened, and the law, as always held in this state, does not undertake, when both parties have been negligent, to measure the degree of the negligence of each. And we are of opinion that no substantial reason exists why these sanie rules of care and. of ' responsibility in the particulars stated imposed upon the passenger in the steam car ought not to be held to apply to the same passenger in an electric interurban car. We find but few reported cases arising from accidents of this character occurring on street cars. The case nearest in point to which attention has been called is that of The Peoples’ Pass. Ry. Co. v. Lauderbach, 4 Penny., 406. The injury occurred by the plaintiff’s arm being struck by a street car passing the car on which the plaintiff was riding, the claim of the company being that his arm protruded out of the car window. It was held that “where a traveler puts his elbow or an arm out of a car window voluntarily, without any qualifying circumstances impelling him to it, it must be regarded as negligence in se; and where this is the state of the evidence, it is the duty of the court to declare the act negligence in law.”

It was sought to support. the plaintiff’s case below by proof that many other people extended their arms out. Probably so. But we are unable to see how this sort of testimony ought to determine the question of ordinary care. Probably an equal number did not so extend their arms. If this kind of testimony may be resorted to, where would the inquiry end? And would the dispute be determined by showing on which side there was a majority?

Recurring again to the evidence, it appears that there were four rods or bars across the windows of the car, including the one in question, and that the highest rod was a foot above the window-sill. It was upon the top rod or bar that plaintiff rested his arm. The purpose of these rods is in dispute. It would seem that, whatever other purpose they might subserve, if any, they were calculated to warn the passenger to keep his person inside the car. It is urged that they were placed there to keep packages and children from falling out. They might serve, in a measure, to further these objects; but passengers’ arms are of more consequence than packages, and a warning to children might with equal propriety be heeded by adults. Again it is urged that they were placed outside the window to protect it. If that were the object the wonder is that they were not continued higher up. Again it is insisted that they constituted an invitation to the passenger to rest his arm upon the- upper one. As well might it be urged that the bar or strap found on summer cars, extending on one side from one end to the other, and whose manifest object has been always supposed to be to keep passengers from alighting on that side, and others from entering, is after all, not for those purposes but for the purpose of affording the passenger a convenient resting place for his arm. The proposition surely lacks reason.

Coming now to the charge, it is to be noted that the court' left to the jury the matter of the location of the bars, the question of whether or not the plaintiff permitted his arm or any part of it to extend out beyond or over the bars, and whether or not that act contributed to the accident, holding that if all those propositions were found affirmatively then and in such case there could be no recovery. If we are correct in the deductions hereinbefore made respecting the duty of the passenger, then this charge properly stated the rule of law, and the giving of it to the jury was not error. We think the charge was correct and that in reversing the judgment of the common pleas because of this instruction the learned circuit court erred. The judgment of that court will be reversed and that of the common pleas affirmed.

Reversed.

Sitauck, C. J., Price, Crew, Summers and Davis, JJ., concur.


source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    Auditor of Lucas County v. The State, ex rel. Boyles.

      Relief of the blind — Act of April 25, 1904, invalid — Legislative power vested in General Assembly — Powers of taxation — Special legislation — Constitutional law.

    1. The legislative power of this state is delegated to the General Assembly. This comprises the taxing power, but the power of the state to take the property of its citizens by a. tax is not broader than the purpose for which the state is formed and so is not wholly within the discretion of the Legislature, but, without express prohibition, is subject to the inherent limitation that it may be exercised only for a public purpose.
    2. The act entitled “An act to provide relief for worthy blind,” passed April 23, 1904 (97 O. L., 392), which provides that all male blind persons over the age of twenty-one years, and all female blind persons over the age of eighteen years, who have been residents of the state for five years and of the county for one year and have no property or means with which to support themselves, shall be entitled to and receive not more than twenty-five dollars per capita quarterly from the county treasury, is unconstitutional for the reason that it requires the expenditure for a private purpose of public funds raised by taxation.
    (No. 9670
    Decided October 16, 1906.)
    Error to the Circuit Court of Lucas County.
    The facts are stated in the opinion.

      Mr. William G. Ulery; Mr. James S. Martin and Mr. Holland C. Webster, for plaintiff in error.
    The plaintiff in error contends that the law (97 O. L., 392) is unconstitutional and void, being in conflict with the following provisions of the Constitution of the United States and of the Constitution of Ohio: Article IV, Section 2; Article V of Amendment to the Constitution, and Article XIV, Section 1, Bill of Rights, Section 2.
    It is important in this case to determine the breadth of meaning that attaches to the Bill of Rights in the Ohio State Constitution, and it would appear from the decisions that this Bill of Rights was equally as broad in its meaning as is the first section of the Fourteenth Amendment to the Constitution of the United States. A particularly important case, and one illustrative of this, is the case of State, ex rel., v. Ferris, 53 Ohio St., 314.
    That the court may look at this case from every point of view, we desire to suggest to the court that Section 1 of Article VII of the Constitution of the State of Ohio, provides: “Institutions for the benefit of the insane, blind and deaf and dumb, shall always be fostered and supported by the state.” It is also true that the statutes of Ohio make ample provision for the support and care of the blind, both by laws relating to the Ohio State School for the Blind, as found in Sections 665 and 666 of the Revised Statutes, and by the laws relating to the care of the poor as found in Section 1491 and following sections of the Revised Statutes. The court must necessarily consider these statutes, and such other statutes of the state, as may have been enacted upon this subject, along with the provisions of the Constitution of the United States and the state of Ohio, referred to above, before it will be enabled to arrive at a proper conclusion as to the constitutionality of the act called in question by this suit. The nature of the subject-matter of the act in question, is also of importance. Broadly speaking, there are three principles of constitutional law which we submit are violated by the act under consideration: '
    I. The words “due process of law” as used in Article V of the Amendments to the Constitution of the United States, have been held to prohibit the levy of taxes for any other than a public purpose.
    II. The words “the equal protection of the laws,” as found in Section 1 of Article XIV of Amendments to the Constitution, prohibit unjust discrimination in the expenditure of the proceeds received from taxation, and these words are in themselves a pledge of the protection of equal laws.

      III. No law may stand which in its terms shall abridge the privileges or immunities of any citizen of the United States.
    The words “due process of law,” as used in Article V of the Amendments to the Constitution of the United States, have been held to prohibit the levy of taxes for any other than a public purpose.
    Under this principle we earnestly contend that the purpose and object of the law in question in this case, is purely private and for the benefit of the individual and'not for a public purpose, nor for the welfare of the general public. In other words, it is simply a gift, and one which is forbidden not only by the Constitution, but by good morals. If such a classification is to be permitted, its possibilities are without limitation. There is no place where we may call a halt. The variety of dependent classes is unlimited, and no reason exists, if this enactment is permitted to stand, why a thousand laws should not be placed upon the statute books, each providing for relief for a different class, each as dependent as the class in question, and such laws be permitted to stand. Judson on Taxation, 405.
    In the case of The Citizens Savings & Loan Association v. Topeka, 20 Wallace, 655, Justice Miller said that a law authorizing a tax for a purely private purpose is an unauthorized invasion of private rights. People, ex rel., v. Salem, 20 Mich., 452; State, ex rel., v. Switzer, 143 Mo., 287.
    So it has been held that the maintenance of public schools, high schools and normal schools, as indicated in the case of Commonwealth v.
      Hartman, 17 Pa. St., 118; and Richards v. Raymond, 92 Ill., 612; and Briggs v. Johnson County, 4 Dillon’s Reports, 148, are public purposes, but that a private school was not a public purpose, and the power of taxation could not be invoked in its aid, as indicated by the case of Curtis’s Admr. v. Whipple et al., 24 Wisconsin, 350.
    The United States Circuit Court held in the case of Dodge v. Mission Township, 46 Circuit Court Appeals, 661, that a subscription to the capital stock of a corporation organized to erect public sorghum mills, could not be made and that a tax for that purpose was a tax for a private purpose.
    So it was held in Freeland et al. v. Hastings et al., 10 Allen, 570, that a tax to raise money to pay bounties to soldiers in order to encourage enlistment in time of war, was valid, while in the case of Booth v. The Town of Woodbury, 32 Conn., page 118, it was held that a tax for the payment of bounties to soldiers after the war as testimonial of the public appreciation of their services was held to be void as being a private purpose. Judson on Taxation, page 423.
    In Massachusetts a statute was held valid that authorized a city to erect a memorial hall to the memory of soldiers and sailors. Under authority of this statute, however, the city council appropriated money for a memorial hall to be used in part by a certain G. A. R. Post. Story on the Constitution, 692; Cooley on Constitutional Limitations, 153; Cooley on Taxation (3d Ed.), 204.
    A very sensible treatment of the subject is that in the cases of Philadelphia Association, etc., v. Wood, 39 Pa. St., 73; State, ex rel., v. Bargus et

      al., 53 Ohio St., 108; Board of Education v. State, 51 Ohio St., 539; Story on the Constitution, Vol. 2, 694, et seq.; Chicago & E. Railroad Co. v. Keith, 67 Ohio St., 290.
    The words “the equal protection of the laws,” as found in Section 1 of Article.XIV of Amendments to the Constitution, prohibit unjust discrimination in the expenditure of the proceeds received from taxation, and these words are in themselves a pledge of the protection of equal laws.
    No law may stand which in its terms shall abridge the privileges or immunities of any citizen of the United States.
    This statute, if enacted for any purpose at all, was enacted for the purpose of making provision for a dependent class. Doés it do this? Is it fairly within the various constitutional provisions affecting legislation of this nature? We contend that the law is wrong both in principle and in results.
    Why were the blind selected as a special class for the bestowal of this annual gift of one hundred ($100) dollars? As subjects of charity, have they any greater rights than any other of the dependent classes? Counsel upon the other side, by a very labored argument in the lower court, attempted to sustain this law upon the provision in Section 1 of Article VII of the Ohio Constitution, which provides that “institutions for the benefit of the insane, blind and deaf and dumb, shall always be fostered and supported by the state.”
    Surely counsel will not contend that the above provision of the Constitution will sustain a law which provides for the bestowal of a gift annually upon certain blind persons who come within the provisions of that statute.- We take it the word “institution” has a somewhat different meaning and is not susceptible to the broad construction contended for by counsel upon the other side, but is simply a recognition that the blind as a class should be considered and provided for by the Legislature. In fact, it- might be urged that the Constitution having provided that institutions for the blind should be fostered and supported by the state, that this was a limitation upon the power of the Legislature to provide for the blind in any other fashion. It would therefore appear that the relief provided for in this act, amounts to nothing more than unjustifiable paternalism on the part of the Legislature, that it is capricious and unreasonable, and does not find warrant in existing conditions.
    . In the first place the question naturally arises as to who are citizens under the constitutional provisions referred to above. Story on the Constitution, 683.
    ' Judson sets forth in his work on Taxation, on page 602, that the equal protection of the laws under the Fourteenth Amendment of the United States prohibits an unjust discrimination in the expenditure of the proceeds of taxation, as well as it does unjust discrimination in the making of the levy. Cooley on Constitutional Limitations, 485; Story on the Constitution, Volume 2, 706.
    In the case of Nashville, C. & St. L. Railroad Company v. Taylor et al., 86 Fed. Rep., page 168, the court held that if a statute results in an arbitrary and oppressive discrimination in regard to a large class of citizens, or a large species of property, it is a denial of the equal protection of the laws. Cooley oh Taxation, Volume I, 78; Claybrook et al. v. The City of Owensboro et al., 16 Fed. Rep., 297; Atchison, etc., Railroad Co. v. Clark, Treas., 60 Kan., 826; People v. Bellet, 99 Mich., 151; State, ex rel., v. Schlitz Brewing Co., 104 Tenn., 715.
    These matters have been passed upon in the state of Ohio in a vigorous manner, so vigorous in fact as to lead this court unquestionably, we think, to the conclusion that the law under consideration is unconstitutional and void. State v. Gardner, 58 Ohio St., 599; State v. Gravett, 65 Ohio St., 289; Harmon v. State, 66 Ohio St., 249.
    In a general way all these provisions of the Constitution -are discussed in the following cases in Ohio: Adams v. Nemyer, 35 W. L. B., 31; State, ex rel., v. Board of County Commissioners, 35 Ohio St., 458; State, ex rel., v. City of Toledo, 48 Ohio St., 112; Hixson v. Burson et al., 54 Ohio St., 470; State, ex rel., v. Davis et al., 55 Ohio St., 15; Gaylord et al. v. Hubbard, Treasurer, 56 Ohio St., 25.

      Messrs. Whitlock, Milroy & Mallow, for defendant in error.
    The legislative act involved is found in Volume 97, Ohio Laws, page 392. The constitutional provisions which counsel for plaintiff in error assert are violated by the act are these: U. S. Constitution, Article IV, Section 2; U. S. Constitution, Amendment, Article V; U. S. Constitution, Amendment, Article XIV, Section' 1; Ohio Constitution, Bill of Rights, Section 2; Ohio Constitution, Article II, Section 26.
    The contention of counsel is the one usually made when these constitutional provisions are invoked; that is, that the law is not for a public purpose, that it is class legislation, and does not operate uniformly.
    In contending that the law violates no constitutional provisions, we submit the following propositions as being well founded:
    The care of the insane, the imbecile, the blind, the deaf and dumb, and, to a certain extent, of the poor, is recognized by all enlightened governments as among their primary duties, and the power to tax for the benefit of these classes inheres in all governments independently of any written enactment. People v. Salem, 20 Mich., 452; Judson on Taxation, 423; Cooley on Taxation, 3d Ed., 204; State, ex rel., v. Bargus et al., 53 Ohio St., 108; Burroughs on Taxation, Section 25.
    This duty and its corresponding power have-been expressly recognized in the Constitution of this state. Article VII, Section 1.
    In recognizing this duty the Constitution gives the Legislature the widest • discretion in carrying out its provisions and the institutions contemplated may take such form as the Legislature may decide. Constitution, Article VII, Section 1.
    This section enjoins upon the Legislature the establishment of institutions for the benefit of the blind, among others, but the form of these institutions and the manner of conferring this benefit are to be determined by the Legislature in the scope of a wide discretion which the Constitution leaves to it. That is, the details are left to the General Assembly and it is trusted to give these institutions such form or to make such changes in them when formed as necessity and experience may suggest. Thus far practically all of the legislation under this section of the Constitution is found in Title V, Revised Statutes (Section 623 ct seq.), which treats of the subject of benevolent institutions.
    The Supreme Court has said that this provision of the Constitution is not self-executing, and that the mode in which such institutions are to be fostered and supported is left to the discretion of the General Assembly. State v. Kiesewetter, 37 Ohio St., 546.
    We contend that the word “institution” is not to be understood or considered in any narrow or restricted sense. It does not mean merely an imposing building of red brick with a power house and a tall chimney, a superintendent and staff, a code of elaborate rules, an annual deficit and a scandal in the board of trustees.
    This word, vital in considering this law, means, according to the Century Dictionary: “More specifically, an established habit of action, or body of related facts, regulating human conduct in the attainment of a social end, and constituting an element in the social organization or civilization of a community.”
    And Webster defines it as an “organized effort of society, established either by law or the authority of the individual, for promoting any object, public or social.”
    The Supreme Court has recognized this broader meaning of the word whenever it. has been presented to it, and we cite as examples of this recognition two cases. Gerke, etc., v. Purcell, 25 Ohio St., 244; Humphries, Auditor, et al. v. The Little Sisters of the Poor, 29 Ohio St. 206.
    The discretion conferred on the Legislature by the Constitution in this regard is subject to control by the courts, but only a flagrant violation of it will justify judicial interference, and so long as a law is within the spirit and purpose of the constitutional injunction the courts, whether they approve the form the institution takes or not, have no power to interfere. Cooley Constitutional Limitations, 6th Ed., 153, 200; State v. McCann, 21 Ohio St., 198; State v. Smith, 44 Ohio St., 348; Beebe v. State, 6 Ind., 501; Walker v. Cincinnati, 21 Ohio St., 14; Cooley’s Constitutional Limitations, 5th Ed., 201; License Tax Case, 5 Wallace, 462; Perry v. Keene, 56 N. H., 514; In re Peter Townsend, 39 N. Y., 174; Bankhead et al. v. Brown et al., 25 Iowa, 540; Burroughs on Taxation, Section 13; Cooley’s Prin. Const. Law, 57; Tiedeman’s Limitation of Police Power, Section 2; People v. Toynbee, 2 Park. Cr. (N. Y.), 329.
    Even in the absence of this wide discretion, the Legislature, in enacting the act of April 26, 1904, made a classification that is not unreasonable, but is in harmony and consonance with the general policy of the laws on related subjects.
    It is claimed that the law is void because it is class legislation, because the power to tax is used to benefit a certain class, to-wit:
    (a) The blind, and

      (b) Those only of the blind who are “worthy;” i. <?., moral, of legal age and residents of the state and county for a certain time.

      •The first proposition need not be seriously considered. The Constitution has already fixed the blind as a class in the legislative sense; they are so recognized by the spirit of our land and the policy of modern enlightened states; our own state has already legislated with reference to them or with reference to certain of them, has taxed the people for their support and education, and these laws have universally been upheld whenever questioned.
    To say now that this act is unconstitutional because it affects the blind alone, and makes a class of the blind, is to say that the laws creating asylums for the insane, the deaf and dumb, the epileptic and other classes of unfortunates and defectives, are unconstitutional for a like reason.
    Counsel seem to object because the law does not operate equally upon all the poor; that is, to put the point in another way, counsel by inference argue that the act should be aimed at the relief of all the poor, and not at the blind merely, as one class of the poor. It is true, of course, that the act affects only those blind who are poor; but it is not enacted for their relief because they are poor, but because they are blind; that is, it was intended to aid the poor blind, and not the blind poor. The distinction should be kept in mind. So far as the blind are concerned, the only provision made for them is found in Chapter 6, Title V (Section 665 et seq., Revised Statutes), which provides for the Ohio State School for the Blind. An examination of this law shows that certain blind and purblind persons, residents of the state, may be received into the school for the purpose of receiving instruction and the superintendent of the school is made practically the sole judge as to the qualifications of the persons to be admitted to that school. And the act of April 26, 1904, recognizes the fact that there is no legislation for the benefit of the blind aside from the provisions for the state school; this is Section 3, which says (after providing for the residence), “Under no condition or circumstance shall the said beneficiary lose his or her benefits or residence by or through removal to any home or institution for the blind not maintained by the state or county.”
    The Constitution has already fixed the blind as a class; the act establishing the state school for the blind affects this class, not because they are poor, not because they are blind or partially blind. Nor does the act establishing the school operate on all the blind equally; certain restrictions are imposed, or may be imposed, at the superintendent’s will; as already said, the fact that a blind person is able to support himself, or that his friends are able to provide for him, does not debar him from the state school; nor will the fact that he is poor alone entitle him to admission. Many other conditions, are imposed; for instance, he must be of good health, of a certain age, of good morals, etc.; in a word, a classification is attempted in that act which is no more unreasonable than the one attempted in this act.
    It is claimed that there is an unjust discrimination among the blind themselves. Let us see. Laying aside the fact that the Constitution authorizes and enjoins the support and fostering of institutions for the benefit of the blind, under such regulations as may be prescribed by law, let the usual tests-be applied. Cooley’s Prin. Const. Law, pp. 236, 237, and cases there cited.
    Counsel for plaintiff in error for the first time and in this court attempt to interpose objection to the moral requirement of the act. The objection we think needs little discussion. Scioto Valley Railway Company v. Cronin, 7 O. D., Reprint, 226.
    We submit that an examination of the authorities on this subject of classification amply supports the contention that the classification made by this act is wholly fair and constitutional. State, ex rel., Garnes, v. McCann et al., 21 Ohio St., 211; State v. Hipp, 38 Ohio St., 199; Hocking Valley Coal Company v. Rossert, 53 Ohio St., 12; State, ex rel., v. Ferris, 53 Ohio St., 314; Burlington, etc., Railway Co. v. Dey et al., 82 Iowa, 312; Booth et al. v. The Town of Woodbury, 32 Conn., 118; Moushand v. Rodetzky et al., 7 O. D., 225; People v. Bellet, 99 Mich., 151; Cooley Constitutional Limitations, 390; State v. Schlitz Brewing Co., 104 Tenn., 715; In re Sugar Notch Borough, 192 Pa. St., 356; Seabold v. County Commissioners, 187 Pa. St., 318; Commonwealth v. Gilligan, 195 Pa. St., 504; People v. McCreery, 34 Cal., 432; Cyc. of Law and Practice, Vol. 7, 185; Cooley on Constitutional Limitations, Ed. of 1868, 391; State v. Hogan, 63 Ohio St., 210; Barbier v. Connolly, 113 U. S., 27.
    The exemption laws of the state are founded, not upon any consideration of favor to the debtor or individual, not for the benefit of the impecunious only, but apply to all alike who are of the classes and in the situation included and are justified by considerations of the general good. The Legislature has no power to bestow mere charity where it will work injustice to others. It would be an exercise of purely personal and arbitrary power. Where particular persons are picked out and separated so that the law but for such separation or limitation would operate on others, of such class and thus form a class not upon any reasonable basis of difference of characteristics, capriciously, but as matter of will and not of reason, the same is open to the objection above stated. The rule is well settled that where an attempt to make an arbitrary classification by selecting a few of a class and conferring upon them privileges and benefits not conferred upon others coming within the same class, is invalid. Williams v. Donnaugh, 65 Ohio St., 499; State v. Board of Education, 8 N. P., 186; Froelich v. Toledo, etc., Railway Co., 24 C. C., 359; Roe, Admr., v. New York, etc., Railway Co., 13 Dec., 260; Mooney v. Bell et al., 8 N. P., 658.
    The whole question of class legislation and the uniformity of operation of general laws is ably discussed by Judge Hull, in announcing the opinion of the circuit court in Froelich v. Railway Co., supra, and the rule is there laid down that where the classification is reasonable — has some reasonable grounds to sustain it — it will be upheld.
    The following cases also hold that peculiar circumstances which surround certain persons are ample grounds for classification. Williams v. State, 130 Ala., 31; Lewis et al. v. Hartford Silk Manufacturing Co., 56 Conn., 26; People v. Chicago, etc., Railroad Co., 194 Ill., 56; Burns et al. v. Gavin, 118 Ind., 321; State v. Hogan, 63 Ohio St., 202; State v. Henderson, 113 La., 232.

      The object and purpose of this sort of legislation is to relieve the citizens at large of a burden which must otherwise rest on them individually. The failure of the state to pass laws to remedy such conditions, as said before, can create no liability on the part of the representatives of the people other than a responsibility to their constituencies for their political conduct. The citizen who is the victim of the unfortunate condition which the law in question seeks to remedy has no legal right to demand that such legislation be made in his behalf. Trustees v. White et al., 48 Ohio St., 577; In re Price v. Farley et al., 22 C. C., 48; Chalfant v. State, 37 Ohio St., 60; Cooley’s Const. Limit., p. 481.
    We desire also to call the attention of the court to the case of Kane, Admx., v. Erie Railroad Co., decided on the 6th of December, 1904, in the United States Circuit Court of Appeals, which is to be found in the Ohio Law Reporter for 13th February, 1905. Probasco v. Raine, Auditor, 50 Ohio St., 390.
    Laws enacted under this power are for a public purpose, although incidentally dependent and defective classes are helped, and where they operate uniformly, do not deprive any one of his property without due process of law, nor take from any citizen the privileges and immunities guaranteed by the law of the land.
    The nature of a statute depends upon the character of its subject-matter; if that be of a general — as distinguished from a local or special nature — existing in every county throughout the state, then the law is of a general nature and must have uniform operation. Kelley v. State, 6 Ohio St., 269; State v. Powers, 38 Ohio St., 54; Costello v. Wyoming, 49 Ohio St., 202; State, ex rel., v. Ellett et al., 47 Ohio St., 90; Falk, ex parte, 42 Ohio St., 638; Lehman v. McBride, 15 Ohio St., 606.
    The present law, while applying and referring only to persons of a certain condition, is of equal force and effect in every county in the state. Uniformity of operation requires that laws shall operate in all parts of the state where are found the conditions which are the subject of‘the legislation. Uniform operation does not necessarily mean “universal” operation. State, ex rel., v. Portsmouth & Columbus Turnpike Railroad Co., 37 Ohio St., 481; Bronson v. Oberlin, 41 Ohio St., 476; State v. Pugh, 43 Ohio St., 112; State, ex rel. Att’y Gen., v. Hudson, 44 Ohio St., 137; Marmet v. State, 45 Ohio St., 66; State, ex rel., v. Bargus et al., 53 Ohio St., 109.
    We contend that the act is not only general in nature and of uniform operation, but that it deprives no citizen of the equal protection of the laws, nor does it deprive him of his property without due process of law; neither does it confer any privileges or immunities of such character as come within- the constitutional inhibition. Trustees v. White et al., 48 Ohio St., 577, in regard to certain qualifications as to age and residence is submitted as sustaining the contention that this is a reasonable and just discrimination if indeed it can be held to be a discrimination at all.
    If the Legislature in passing the act of April 26, 1904, was not exercising the power conferred by Article VII, Section 1, then it was attempting to exercise the policy power and if it made a classification that was not unreasonable the act must stand. Am. & Eng. Ency. Law, Vol. 18, 785; Stone v. Mississippi, 101 U. S., 814; Mayor, etc., of N. Y., v. Miln, 11 Pet. (U. S.), 139.
    The provisions of Section 7, Article X of the Constitution, is no limitation on the powers of the General Assembly, and the Legislature having the power to tax for the purpose contemplated by the act of April 26, 1904, may exercise this power as it does in the act. Cooley on Constitutional Limitations, 601; Burroughs on Taxation, Section 64b.

   Summers, J.

In 1904 the General Assembly passed an act entitled: “An act to provide relief for worthy' blind” (97 Ohio Laws, 392). The act provides that all male blind persons over the age of twenty-one years, and all female blind persons over the age of eighteen years, who have been residents of the state for five years, and of the county for one year, and have no property or means with which to support themselves, shall be entitled to and receive not more than twenty-five dollars per capita quarterly from the county treasury on warrant of the county auditor, authorized by the probate judge, and that under no condition or circumstance shall the beneficiary lose his or her benefits or residence by or through removal to any home or institution for the blind not maintained by said state or county.

The probate judge of Lucas county, proceeding under the act, authorized the auditor of that county, to issue a warrant on the treasurer for the payment of twenty-five dollars to the relator. The auditor refused, and thereupon the relator filed a petition in mandamus in the court of common pleas of that county. The court of common pleas overruled a general demurrer to the petition and allowed a peremptory writ, and the circuit court affirmed.

The care of the state for its dependent classes is considered by all enlightened people as a measure of its civilization and it is not doubted that the legislation under consideration was inspired by beneficent if not enlightened motives. This state has provided institutions for the education of the blind; for feeble-minded youth; for honorably discharged soldiers, sailors and marines; a home for soldiers’ and sailors’ orphans; for the care and treatment of the insane; an asylum for epileptics and epileptic insane; a boys’ industrial school; a girls’ industrial home; for the establishment of homes of the friendless; a sanitarium for consumptives; and an institution for the treatment and education of deformed and crippled children. The object of these institutions is sufficiently indicated by their designation, and may be stated to be, generally, to provide places and means where their afflictions may be relieved, or where they may be taught and trained so that they may be self-supporting, or less likely to become a burden on the state, or where their physical wants may be supplied at the public expense. But it does not follow that it would be either wise or constitutional to select out a class, having some particular physical infirmity, and then confer a bounty upon individuals . of that class. If 'a bounty may be conferred upon individuals of one class, then it may be upon individuals of another class, and if upon two, then upon all. And if upon those who have physical infirmities, then why not upon other, classes who for various reasons may be unable to support themselves? And if these things may be done, why may not all property be distributed by the state?

The principal contention on the' part of the auditor is that the law is unconstitutional, because the purpose for which the public funds are appropriated is not public, and because Section 1 of Article VII, which provides, “Institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state; and be subject to such regulations as may be prescribed by the General Assembly,” is a limitation upon the legislative power; and upon the part of the relator, that the act is within the legislative power, and, in the absence of a specific prohibition in the Constitution, is wholly within the discretion of the General Assembly, and that Section 1 of Article VII is an express grant of power and sufficiently broad to comprise the act in question.

Section 1 of Article II provides that the legislative power of this state shall be vested in a General Assembly. This comprises the power of taxation. But that extends only to the levying of taxes for the purpose of the state. Section 2 of the Bill of Rights declares that all political power is inherent in the people. Government is instituted for their equal protection and benefit. And Section 1 declares that the right of acquiring, possessing and protecting property is one of the inalienable rights of all men. And Section 19. provides that private property shall ever be held inviolate, but' subservient to the public Avelfare. So that the power of the state to take the property of its citizens by a tax is not broader than the purposes for which the state is formed, and so is not wholly within the discretion of the Legislature, but without express prohibition is subject to this inherent limitation that it may be exercised only for a public purpose.

This view of the law is supported by text-writers and by well-considered cases. Story on the Constitution, 699; Cooley’s Constitutional Limitations, 207; Black on Constitutional Law, 342; Judson on Taxation, 405; Gray on Limitations of Taxing Power, 123, and cases there cited.

Section 1 of Article VII, which provides that institutions for the benefit of the insane, blind, and deaf and dumb, shall always be fostered and supported by the state, is neither a grant nor a limitation of power, but a recognition of the fact that by enlightened people such classes are treated as wards of the state, and is an injunction upon the General Assembly to foster and support 'institutions for their benefit, and it is in obedience to this 'constitutional mandate that the General Assembly has provided for the institutions already enumerated.

The word “institution,” as used in the Constitution, had a popular if not a legal signification, as exemplified in the legislation above referred to, and if Section 1 of Article VII should be held to be a grant of power as well as a mandate, the act in question would not come within its terms.

The controlling question then is, whether the disbursement of the public funds provided by the act in question is for a public purpose.

No rule sufficiently definite, to be susceptible of certain application has been established. But in the leading case, Loan Assn. v. Topeka, 20 Wallace, 655, where the constitutionality of an act of the Legislature of Kansas authorizing a municipality to issue and sell its bonds in aid of a manufacturing corporation was raised, Mr. Justice Miller says: “In deciding whether or not, in a given case, the object for which the taxes are assessed falls upon the one side or the other of this line, the courts must be governed mainly by the course and usage of the government,' the objects for which taxes have been customarily and by long course of legislation levied, what objects,and purposes have been considered necessary to the support and for the proper use of the government, whether state or municipal. Whatever lawfully pertains to this and is sanctioned by time and acquiescence of the people, may well be held to belong to the public use and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation.”

If that rule is applied here, it must be said that the act under consideration is without precedent in this state and that no provision is made in the act to insure the application of the money to the support of the individual, or to prevent him from becoming a public charge, or in any manner to control its use by him. .The act does not direct that the payments shall continue during the lifetime of the beneficiary, nor does it limit the time, nor provide that payments shall cease with the needs of the donee, or provide for any subsequent inquiry. It is an indeterminate gratuitous annuity, a gift pure and simple, and, being so, the Legislature is without authority to make it from the public funds. Other provisions of the act are open to criticism, but as they go to the wisdom of the legislation rather than to the power to enact it, they will not be noticed.

It may be said that funds used for the care of the poor are used for a public purpose, and that moneys used under the provisions of this act will subserve a public purpose for the reason that they will enable many blind persons, aided by their own efforts or those of their friends, to support themselves, and thus to escape becoming a public charge. The wisdom of the legislation is not questioned; the power of the Legislature to so enact is the question presented here, and that an incidental public benefit is not sufficient to save the legislation has also been decided in the case just referred to.

In that case it was claimed that the benefit conferred on the commerce and industry of the town was a sufficient public benefit to warrant the imposition of the tax. Mr. Justice Miller said: “If it be said that a benefit results to the local public of a town by establishing manufactories, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner are equally promoters of the public good and equally deserving the aid of the citizens by enforced contributions. No line can be drawn in favor of the manufacturer which would not open the public treasury to the importunities of two-thirds of the busines men of a city or town.”

If the power of the Legislature to confer an annuity upon any class of needy citizens is admitted upon the ground that its tendency will be to prevent them from becoming a public charge, then innumerable classes may clamor for similar bounties, and if not upon equally meritorious ground, still on ground that is valid in point of daw, and it is doubted that any line could be drawn short of an equal distribution of property.

A few of the many cases more or less illustrative of the application of the rule may be noticed. In Wisconsin Keeley Institute Co. v. Milwaukee County, 95 Wis., 153, an act requiring any county to pay out of the public moneys of the county to a private party not to exceed $170, for every inebriate found therein and treated upon the order and certificate of the county judge thereof, is declared unconstitutional. See also Putney Bros. Co. v. Milwaukee County, 108 Wis., 554; State, ex rel., v. Froehlich, 118 Wis., 129. In State, ex rel., v. Switzler, 143 Mo., 287, an act was held invalid that provided for the payment of certain sums of money in monthly installments to certain students while attending the state university, who were dependent on their own efforts for an education, and financially unable to otherwise obtain the same.

The judgments are reversed and petition dismissed.

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


author: Crew, J.

text:
    The State of Ohio v. Veres.

      Bastardy proceedings — Not a bar to criminal prosecution against father, when — Section 3140-2 Revised Statutes — Abandonment of child — Criminal law.

    The pendency of a bastardy proceeding instituted against the father of an illegitimate child, is neither a bar to, nor ground for the abatement of, a criminal prosecution subsequently commenced against him by the state under Section 3140-2, Revised Statutes.
    (No. 9800
    Decided October 16, 1906.)
    Exceptions by prosecuting attorney to decision of the Court of Common Pleas of Lucas County.
    At the April Term, 1905, of the Court of Common Pleas of Lucas County, Ohio, the defendant Emrich Veres was, under favor of Section 3140-2, Revised Statutes, indicted by the grand jury of said county for neglecting and refusing to support his minor child. Said child was referred to and designated in said indictment by the name of Albert Radoczi, alias Albert Veres. To this indictment the defendant filed the following motion: “The said Emrich Veres moves the court to quash the indictment herein, against said defendant, by reason of a certain defect apparent upon the face of the record,' in this, to-wit: it is apparent from the record herein that the minor child herein referred to was not born in lawful wedlock.” This motion to quash was overruled by the court, whereupon the defendant filed the following plea in abatement:
    “The said Emrich Veres says that the said state of Ohio ought not further to prosecute the said indictment against him, because he says that on July 21, 1904, he, the said defendant herein, was arrested upon a paternity charge preferred by one Julia Radoczi, an unmarried woman, and taken before the city and justice court of the city of Toledo, Port Lawrence township, Lucas county, Ohio, where a hearing on said charge was had, and that on or about July 21, 1904, he, the said defendant herein, was held by said court to the Court of Common Pleas of Lucas County, Ohio, to answer to said charge.
    “That defendant herein, consistent with the order of said city and justice court, gave bond for his appearance in the Common Pleas Court of Lucas County, Ohio, to answer to said paternity charge, and that pending the hearing of said charge in said common pleas court, the defendant herein was on or about February 20, 1905, arrested and taken before one C. H. Barks, a justice of the peace in and for Adams township in said Lucas county, Ohio, charged with neglect of minor child under the age of sixteen years, the said minor child being the same for which on a paternity charge the defendant herein had, as heretofore set forth, given good and proper bond to appear and defend against in said Court of Common Pleas of Lucas County, Ohio.
    “That said Justice Barks on or about February 23, 1905, held the defendant herein in bond in the sum of one thousand dollars, to the grand jury of Lucas county, Ohio, to answer to the charge of neglect of said minor child.
    “That afterwards, to-wit, on or about April 12, 1905, the grand jury of Lucas county, Ohio, returned an indictment against said defendant herein, and said defendant was duly arrested by virtue of said indictment for neglecting his minor child, said minor child being the same heretofore referred to in the paternity charge, as heretofore set forth.
    “Defendant herein says that he is not the father of the child Albert Radoczi, of whom one Julia Radoczi is the mother; that he, the said defendant herein, has always denied any responsibility for said child, and defendant has been willing and anxious to have said paternity proceeding against him so as heretofore set forth, brought against him in the Court of Common Pleas of Lucas County, Ohio, tried and determined.
    “And this, he, the said Emrich Veres, is ready to verify. Wherefore, he prays judgment and that by the court he may be dismissed and discharged from the said premises in the said indictment specified.”
    This plea in abatement, having been submitted to the court on an agreed statement of facts, was adjudged in favor of the defendant. To this decision of the court the prosecuting attorney duly excepted, and on behalf of the state now prosecutes this proceeding to obtain the decision of this court as to the law to govern in similar cases.

      Mr. Lyman W. Wachenheimer, prosecuting attorney of Lucas County, for plaintiff.

      Mr. Parks Hone, for defendant.
   Crew, J.

The plea in abatement in this case was -sustained by the court of common pleas upon the ground, and for the sole reason as appears of record, that the state was without right to indict or prosecute the defendant Emrich Veres under Section 3140-2, Revised Statutes, for failure to support his alleged illegitimate minor child, so long as the bastardy proceeding .instituted against him by the mother of said child was pending and undetermined. The correctness of this ruling is the sole question presented by this record. It was recently decided by this court in the case of Ogg v. State, 73 Ohio St., 59, that an indictment .under Section 3140-2, Revised Statutes, for failure to provide for an illegitimate minor child, need not allege that in a previous proceeding under the bastardy act the accused had been adjudged to be the reputed father of such child; and further, that evidence of such prior adjudication was not essential to a valid conviction on such indictment. With this holding, and view of the law, we are still content. It therefore only remains in the present case to inquire whether the pendency of a bastardy proceeding instituted by the mother of an illegitimate child, is a bar to, or may be pleaded in abatement of, a prosecution by indictment subsequently brought against the father of such child under Section 3140-2, Revised Statutes. This section, which is comparatively of recent enactment,, provides as follows:

“The father, or, when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child or children under sixteen years of age, living in this state, who being able, either by reason of having means, or by personal services, labor or earnings, shall neglect or refuse to provide such child or children with necessary and proper home, care, food and clothing, or said child being legally an inmate of a county or district children’s home, shall neglect or refuse to pay to the trustees' of such children’s home the reasonable cost of keeping such child in said home, shall upon conviction be deemed guilty of a felony and punished by imprisonment in the penitentiary for not more than three years, nor less than one, or in a county jail or in a work house at hard labor for not more than one year, nor less than three months;

“Provided, however, if after conviction and before sentence he shall appear before the court in which said conviction shall have taken place, and enter into bond to the state of Ohio, in the penal sum of one thousand dollars, to the approval of the court as to surety, conditioned that he will furnish said child or children with necessary and proper home, food, care and clothing, or, if said child or children be in a county or district children’s home, that he will pay to' the trustees of said home the reasonable cost of keeping said child or children while remaining in the same, to be fixed by the court as to the amount and times of payment, then said court may suspend sentence therein; * * *

“And provided further, that upon a failure of said parent to comply with said order and undertaking, he or she may be arrested by the sheriff or other officer on a warrant issued on the precipe of the prosecuting attorney, and brought before the court for sentence, whereupon the court may pass sentence, or, for good cause shown, may modify the order and take a new undertaking and further suspend sentence as may be just and proper.”

As will be observed, there is nothing whatever in the language of the above act that indicates or suggests a purpose or intent on the part of the Legislature that the provisions thereof should be invoked only after a proceeding under the bastardy act had been. commenced and terminated. Nor is there anything in 'the nature of the relief given or the punishment prescribed, that discloses a reason why the mere pendency of a bastardy proceeding previously instituted, should be a bar to, or should furnish a ground for, the abatement of a criminal prosecution subsequently commenced under this section. While the two acts are so designed and drawn that each provides a remedy for the enforcement of the same natural duty, namely: the support by the father of his illegitimate child, in this respect only are they alike either in their provisions or purpose. And the remedies they afford for the enforcement of this duty being entirely consistent with each other, the rule is well settled that the satisfaction of one is the only bar to the prosecution of the other. In the present case the plea of defendant does not allege or show any judgment rendered or final order made in the bastardy proceeding instituted against him by the mother. Nor could any order made in that proceeding charging him with the maintenance and support of the child avail him as a defense in the criminal prosecution instituted against him under Section 3140-2, unless it should appear that he was complying with said order and furnishing such support.

Exceptions sustained.

Shatjck, C. J., Price, Summers, Spear and Davis, JJ., concur.