author: Crew, J.

text:
    The Cincinnati Gas & Electric Company v. Johnston.

      Servant experienced in particular work — Cannot recover from master for injury, when — Rule where servant undertakes risk voluntarily — Law of master and servant — Rule of damages.

    A servant experienced in the particular work in which he is engaged, and who knows the number of men required to'prudently and safely perform the same, cannot recover from the master for an injury alleged to have been received by reason of the failure of the latter to provide a sufficient number of workmen to safely perform the work, where it is shown- that such servant at the request, or by direction of the master, but voluntarily, and without protest or objection, undertook such work with full knowledge of the limited number of workmen employed, and of the risk, if any, to which he would thereby be exposed. Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298, distinguished.
    (No. 10142

    Decided March 19, 1907.)
    Error to the Superior Court of Cincinnati.
    On February 26, 1903, Ben Johnston, as plaintiff, commenced an action' in the Superior Court of Cincinnati, against The Cincinnati Gas & Electric Company, as defendant, to recover damages for personal injuries sustained by him while in the employ of the defendant company. In. his petition and the amendment thereto, he alleged, as and for his cause of action, that: “On the 8th day of May, 1902, plaintiff was in the employ of the defendant as a laborer, his work being that of a coal shoveler- on a coal barge in the Ohio River moored to the landing owned and operated by the defendant, and which is known as the East End Gas Works in said city of Cincinnati.
    “That on said day, while shoveling coal as aforesaid with three fellow-workmen, under the directions and control of a foreman employed by said defendant, in the course of plaintiff’s employment, he, together with the three fellow-workmen, was ordered by said foreman to lift and move a very large and heavy timber, known as a spar, that helped to hold in place the' barge on which he was working, which timber was much too heavy 'for four -men -to lift under the conditions then and there existing, and the lifting and moving of which was likely to injure them, all of which was well known to said defendant and its said foreman.
    “He states that notwithstanding such danger, said plaintiff and his three fellow-workmen were’ so as aforesaid ordered to lift and move said.spar by said foreman, and plaintiff, unconscious of the danger to him in obeying the order of said foreman, undertook, with said'three fellow-workmen, to faithfully perform the said task assigned to him, and in so doing, because of the great weight of the said spar, he was severely and permanently ruptured, and rendered permanently and for the balance of his life disabled from performing any hard manual labor and from earning a living in any of the usual employments of a laborer. * * *
    “He states that the said defendant wrongfully and negligently failed to furnish and provide sufficient help to lift the spar so as aforesaid lifted by plaintiff and three fellow-servants on the 8th day of May, 1902, under the order of plaintiff, as set out in the petition. And hq states that by reason thereof and of the facts set up in the petition he was injured as stated in the petition herein. * * * “The plaintiff, by reason of the premises, has sustained damages in the sum of $5,000, for which he asks judgment.”
    For answer, and as a first defense, the defendant, The Cincinnati Gas & Electric Company, denied each and. every allegation in said petition contained, except the allegation that “it is a corporation created under the laws of Ohio.”' And for a further and second defense it alleged, “that if the plaintiff was injured as complained of in the petition, then that such injuries were the result of his own negligence and carelessness and not the negligence or carelessness of the defendant or any of its employes.” To this answer the plaintiff filed no reply. The case was tried to a jury in the superior court, special term, and upon the conclusion of all the evidence the defendant requested the court to direct k verdict in its favor, which request was refused. Thereupon the cause was submitted to the jury and a verdict returned in favor of the plaintiff for $1,550. Thereafter, the defendant, The Cincinnati Gas & Electric Company, filed its motion asking for a judgment on the pleadings, notwithstanding the verdict. This motion was overruled by the court, and the defendant thereupon filed a motion for new- trial. This motion was also overruled, a new trial denied, and judgment was entered upon the verdict. This judgment was affirmed by the superior court in general term. The Cincinnati Gas & Electric Company brings error, asking that the judgments of the courts below be overruled, and that judg- • ment now be entered in' its favor by this court.

      Mr. George H. Warrington, for plaintiff in error,
    cited and commented upon the following authorities :

      Coal & Car Co. v. Norman, 49 Ohio St., 598; Pennsylvania Co. v. McCurdy, 66 Ohio St., 118; Railroad Co. v. Barber, 5 Ohio St., 541; Railway Co. v. Beard, Admr., 20 C. C., 681; Green v. Railway Co., 5 C. C., N. S., 497; Johns, Admr., v. Railway Co., 3 C. C., N. S., 545; Krause et al. v. Morgan, 53 Ohio St., 26; Railway Co. v. Rogers, 57 Fed. Rep., 378; Railroad Co. v. Somers, 3 C. C., N. S., 638; Engine Co. v. Schelies, 61 Ohio St., 298; 20 Am. & Eng. Ency. Law, 2d Ed., 78; Rubber Co. v. Tobin, 3 C. C., N. S., 59; Hill, Admx., v. Railway Co., 22 C. C., 291; Railway Co. v. Rigby, 69 Ohio St., 184; Packet Co. v. Britton, 1 C. C., N. S., 33; Railroad Co. v. Whitacre, 35 Ohio St., 627; Railroad Co. v. Zepperlein, 1 C. C., 36; Railway Co. v. Woods, 9 C. C., 322; Trimble v. Doty, 16 Ohio St., 118; McCoy et al., Trustees, v. Jones et al., 61 Ohio St., 119; Traction Co. v. Forrest, 73 Ohio St., 1; Robison & Weaver v. Gary, 28 Ohio St., 241; Railroad Co. v. Hart, 10 C. C., 411; Railroad Co. v. Tehan, a minor, etc., 4 C. C., N. S., 145; Agricultural Works v. Creighton & Quivey, 21 Ore., 495; Martindale v. Price, 14 Ind., 115; Hudson v. Railway Co., 101 Mo., 13.

      Mr. Raymond Ratliff and Mr. Franklin T. Ca-hill, for defendant in error,
    cited and commented upon the following authorities:

      Engine Co. v. Schelies, 61 Ohio St., 298; Franc v. Nirdlinger, 41 Ohio St., 300; Lovell v. Wentworth, 39 Ohio St., 614; Woodward v. Sloan, 27 Ohio St., 592; Hudson et al. v. Voigt, 15 C. C., 391; Railway Co. v. Roos, Admr., 9 C. C., 203.
   Crew, J.

Two questions are presented by this record, either of which if answered in the affirmative disposes of this case and determines the judgment proper to be entered herein. They are: 1. Was the defendant below, The Cincinnati Gas & Electric Company, after verdict, entitled to have judgment entered in its favor upon the pleadings? 2. Is said company, upon the record here presented, entitled to judgment upon the undisputed facts?

The first of the above propositions must, we think, upon authority of Lovell v. Wentworth, 39 Ohio St., 614, be answered in the negative. The first clause of the syllabus in that case is as follows: “If no reply is filed to an answer of new matter constituting a defense, but the case is tried without objection, as though such allegation had been denied, a demand for judgment on the pleadings after each party has introduced his evidence, is too late.” In the present case the demand for judgment was not made by the defendant until after the verdict. The case was tried without objection, and as though the allegation of contributory negligence in the answer had been properly put in issue by a reply. By treating this allegation as if denied, and proceeding to trial upon the merits as though issue had been joined upon this averment of the answer, the defendant below waived its right to demand a judgment on the pleadings, and its motion asking that judgment be so entered was therefore properly overruled. Lovell v. Wentworth, supra; Franc v. Nirdlinger, 41 Ohio St., 300; Woodward v. Sloan, 27 Ohio St., 592

2. Is the plaintiff in error entitled to judgment in this case upon the undisputed facts? We learn from the record, that the plaintiff below, Ben Johnston, had been in the employ of The Cincinnati Gas & Electric Company as a laborer, for at least five years immediately preceding the 8th day of May, 1902, which is the day on which he was injured. His work was that of coal shoveler, and his place of work on coal barges in the Ohio River at the dock or landing owned, by the defendant company and known as the East End Gas Works in the city of Cincinnati. This dock or landing is located at the foot of an incline plane railway, on which, by means of cars, the coal is carried from the boats or.barges to the retorts of the company, where it is used. In unloading a barge it frequently becomes necessary to shift or move the same, in order that the coal may be taken out from different parts of the boat, and in this manner the weight on the barge be kept properly distributed. When a barge has been emptied it is necessary to shift or change its position so as to permit a loaded barge to take its place, and in removing the empty barge from its position next the shore, it is necessary to handle and use a heavy timber or spar. .When a barge is emptied the workmen at once remove it, and in doing so are required to use this spar. The number of shovelers that were employed on a barge varied from time to time from four to eight or ten. On the morning, and at the time, when Johnston was injured there were four men on the work, and when they had emptied the barge on which they were working they proceeded to move it out into the river, using this spar. In handling or lifting the spar Johnston was injured. The only default or negligence charged by plaintiff in his petition against the defendant company is: “that the said defendant wrongfully and negligently failed to furnish and provide sufficient help to lift the spar so as aforesaid lifted by plaintiff and three fellow-servants.” On the trial of this cause in the superior court, the plaintiff being called as a witness in his own behalf, testified as follows:

Direct Examination.
Q. Mr. Johnston, you are plaintiff in this case? A. Yes, sir.
Q. Where do you live? A. I live on Fourth street.
Q. How long have you lived in Cincinnati?A. Forty-two years I am here.
Q. How old are you? A. Fifty-five.
Q. Where were you employed on the 8th of May, 1902? A. With the gas company, in the East End; East End Gas Company.
Q. What was your employment there? A. Shoveling coal at-the river.
Q. In the bargees? A. In the barges, yes.
Q. How long have you.been employed there? A. I have worked, off and on there, about five years.
Q. You mean before this accident? You haven’t worked there since. A. No, sif; I have not worked any since, no, sir.
Q. Five years before, at the same kind of work? A. Yes, sir.
Q. Now, just explain to the. jury ■ how this accident happened. A. Yes, sir; I was working, the day I got hurt I was working on the coal boat, not a barge, a coal boat; that would measure about eight feet in diameter, and the coal boat would measure twelve feet—
Q. You mean in depth? A. Yes, that is what I mean; twelve foot lift; that is what strained myself, lifting, it was twelve foot; it was not a barge; a barge is only about eight feet.
Q. It was a coal boat? A. Yes, sir.
Q. Now, that was fastened to the bank with a spar, was it? A. Yes; that spar stands in between the barges, like this (illustrating), and when they want to get a barge out, one end of it you have got to raise up, so the barge can pass out, one end of it you have got to lift it up on the lashing (?) so the boat can pass under it.
Q. How large was this spar about? A. Something higher than thirty-six feet long.
Q. And how large square? Well, maybe it might be about twelve inches, something like that, thick.
Q. Who was working on the boat with you at the time? A. Shepard Carpenter, John Holland and John Ryan.
Q. Were you working under the direction of the foreman? A. Yes, sir.
Q. Under whose direction were you working? A. Mr. George Henson.
_Q. What was George Henson’s position there? A. He was the foreman.
Q. He is a white 'man, is he? A. Yes, sir.
Q. Then you four men were working on the boat. A. Yes, sir; in the morning when we started we had five men, and we had a man that done the dumping, John Cain, and along about eleven o’clock, a friend of his had died, on Eastern avenue, and he went to the funeral, so that left us only four men. And Mr. Henson said, “I have been around, boys, to try to get other men; but you boys do the best you can. I want you to help me out.” And I knowed what he meant. Well, when he went away, he said, “I don’t want you men to catch the spar until I give the word; when I give the word I want every man to catch .hold of it and lift what he can.” And so the boys said “All right.” And we caught hold of it, and I was the tallest man in the crowd, and I had my shoulder against it, and the boys had theirs, and it got so they could not reach it, and they had to step in front of me so they could reach it to lift it, and that left the end rest on my shoulder.
Q. What was the effect ? A. It broke the rim of my stomach loose.
Q. Ruptured you? A. Yes, sir.
Q. Now, Mr. Johnston, tell the jury whether or not at any time prior to that, four men, to your knowledge, had undertaken to handle that spar? A. That spar? Well, from eight to nine men, just as many as could get-around it; but we didn’t have only just we four men, that is, we hadn’t only us four men lifting, and it is too heavy; but they could not get no men. Mr. Henson said he could not get nobody. He said, “We will have to try to do the best we could.”
Q. What was the customary number of men used to lift that spar, Johnston? A. We generally have nine to ten men, and sometimes more than that; but I never knew them to go to lift it with four men. They generally have more than that; that is, along in the summer season of the year, the men was warm working up there in the house, the men working down there, and that left a shortage—
Q. Never mind that.
Cross-examination.
Q. And you are fifty-five years old, you'say? A. Yes, sir; I am fifty-five years old; I have been a good stout man.
Q. And you say you worked for the Cincinnati Gas Company for about five years. A. Yes, sir.
Q. Before this accident; before you got hurt? A. Yes, sir.
Q. For five years? A. Yes, sir.
Q. Had you been working at the East End Gas Works all that time? A. Yes, sir; but sometimes, when the ice bothered up there, I would come down here, and then I would go back up there.
Q. Well, were you working at .that particular place, on that coal boat, or coal landing, all of that five years? A. Oh, yes, sir; that is, I didn’t do any other work much around there; I always worked at the river.
Q. You always worked at the river ? A. Yes, sir; they always kept me at the river; I did about a half a day’s work in the yard the whole time I was there.
Q. And all the rest of the time you were working right down here on this boat, right down at the river? A. Yes, sir; in the East End, worked most all the time.
Q. What else did you do beside shovel coal? A. Which, down there at that time?
Q. Yes, for all those five years? A. Oh, outside, when I was not working, the rest of the time ?
Q. No, when you were shoveling' what else did you do down there for tlie company except shovel coal? A. That is all, shovel coal; there was not nothing else for me to do but shovel coal.
Q. Did you ever handle that spar before? A. • Yes, sir.
Q. .Handled that a great deal before, didn’t you? A. Yes, sir, we did a great deal handle it, but we had plenty of help, too.
Q. You had plenty of help? A. Yes, sir.
Q. And it was part of the duty of coal shovelers to handle that spar? A. Yes, that is what we had to do.
Q. That was one of your duties? A. Yes, sir. ■
Q. And how long had that spar been there? A. I don’t know; if was there when I went there.
Q. It was there when you went there? A. Yes, sir. ' .
Q. You handled that spar for five years, didn’t you? A. Yes, sir; off' and on.
Q. And how often would you„handle that? A. A day?
Q. Yes. A. Well, it would be pretty hard to tell.
Q. You would handle that every day? A. Yes, have to handle that every day.
Q. You had to handle that every day during all those-five years? A. Yes, have to handle it; you can’t pass any boats up without.
Q. Was that a pretty heavy spar? A. Yes, pretty heavy; no mistake about that; it was pretty heavy timbér. .
Q. And you knew that was heavy? A. Yes, sir. ■
• Q. You had handled it all that time? A. Yes, sir.
Q. Do you know what it weighs? A. I don’t know what it weighs, but I knew it was mighty heavy.
Q. And you knew that all the time? A. Yes, sir.
Q. You knew that morning before you men got hold of it, it was going to be a pretty- heavy lift? A. Yes, I did; and I done my best.
Q. Was Mr. Henson standing by? A.- Well, Mr. Henson was standing in the coal boat, at the lashing, and every time it would give a little he would take up what he could and as quick as he could and fasten it up on top of the coal boat. When we would make a lift he would try to catch it up. We would lift one end at a time, then when we would get one end up we would go and lift the other then.
Q. What time of day did this occur? A. It was along about between eight and nine o’clock in the morning.
Q. What had you been doing before that in the morning. A, Shoveling coal down from the barge.
Q. When did Mr. Henson speak to you about doing this work, 'moving that spar? A. He speaks to us any time he gets ready- for us; when the digger gets on near you on the.boat and they can’t go any farther, then you have got to move your boat up so they can dig.
Q. And you have been doing that right along for five years? A. Yes,'sir.
Q. And do you remember that he asked you to do that this morning, to lift it up; he told you to lift it up? A. That is right, yes, sir; Mr. Henson told us that.
Q. Where was he when he told you that? A. Up on top of the coal boat, right up on top.
Q. And he called to you to go ahead and do that? A. Yes, sir, and he done sent us off the boat up there to lift it; we walked .up ahead of him.
Q. And he told you to do it? A. Yes, sir.
Q. And you four started off to do it? A. Yes, isir.
Q. Like you had done it many times before? A. Yes, sir; but no four men.
Q. No, no four men had done it before? A'. No, sir.
Q. But you started to go and do it. A. Ye;s, sir.
Q. Did you call out to Mr. Henson that you thought it was too heavy? A. No, sir; I never do anything like that. If the boss told me to do anything I just go and try it.
Q. But you made no protest to him? A. No, sir.
Q. Now, what kind of a man is Mr. Henson? A. I don’t think there is a better boss man on the Ohio River than Mr. Henson.
Q. Is he a tyrannical man? No, sir; nothing like that.
Q. And he never told you to do the work, and if you don’t want to do it, to get out of the job, did he? A. No, sir.
Q. He never talked that way? A. No, sir; never talks that way; I never knowed him to talk that way.
Q. Were any of the other three men who helped you lift that weight injured? A. Not that I know of.
Q. As far as you know, they were not? A. No, sir; I don’t think they were.
Q. Are they still working for the gas company? A. Yes, still working there yet. I think Mr. Ryan is, and Mr. Carpenter and Johnny Ryan, both,. I think they are all working for the gas company.
Q. And none of them were hurt that morning? A. No.
Q. Did you ever see Mr. Henson handle that? A. Yes, sir; I see Mr. Henson lift many times.
Q. He did? A. Yes; but he could not do it that morning, because he had to get up on top of the boat.
Q. You had seen him do that, and you done it a great deal of tener than he had? A. Yes, sir.
Q. You had handled the same spar a great deal of tener than he .had? A. Yes, but I had more help.
Q. Of course, when you got hold of it that morning you knew there were only three men besides yourself? A. Yes, sir.
Q. You knew that perfectly? A. Yes, I knew that, sure.
Q. That was perfectly apparent? A. Yes, sir.
Q. Did it ever occur to you, when Mr. Henson told you to lift that thing up that morning, that if you didn’t go down there he would discharge you from the job? A. Mr. Henson?
Q. Yes. A. No, sir; I didn’t have a bit of. fear of that.
Q. Was not afraid of that? A. No, sir; not at all.
Redirect Examination.
Q. D.id it occur to you that there was any danger of hurting yourself in lifting that? A. Oh, no, no. I didn’t think there was at all; I didn’t think there was at all; no, sir; I was discharging my duty as a man, I thought. That is what I was. I either do a man’s work, or quit; I don’t wait to be discharged; I quit myself, if I don’t do my part of the work.
Q. You didn’t think it would hurt you? A. No.
Q. But you knew it was heavy? A. Yes, sir.

Assuming the foregoing facts to be established, as testified to by the plaintiff, are they, if proven, sufficient to show a right on his part to recover against the defendant company for the injury he sustained? Counsel for defendant in error say in their brief that these facts “make the case of The Van Duzen Gas & Gasoline Engine Co. v. Schelies, 61 Ohio St., 298, perfectly applicable, and it is upon the law as laid down in that case that we rely for the affirmation of the judgments below, and we do not believe it necessary to make any further discussion of the law than a reference to that case.” It would seem also that the view taken by both the courts below was, that the present case, upon its facts, ’is governed and controlled by the rule of law as declared by this court in the above case. In this view we do not concur. The rule announced in the Van Duzen case is not one to be applied indiscriminately 'to all kinds and classes of so-called negligence cases, but, that it may not be put in conflict with certain well established and universally recognized principles of the law governing the relation of master and. servant, must be limited in its application to those cases, which, because of their particular facts, fall within the class of cases to which the Van Duzen case belongs; namely, cases in which the master or his representative, having superior knowledge of a given situation,- assures the servant he can safely undertake a particular work which he is asked to perform, and which, in reliance upon the superior knowledge of the master he therefore undertakes. Or, cases where the master, or one in authority over the servant, peremptorily orders him to do a particular work, apparently dangerous, yet such as a reasonably prudent person, acting under the influence or restraint of such an order, might in obedience thereto properly undertake to perform.

The facts in that case were substantially as follows: Schelies, the servant, at the time the injury occurred was in the employ of the Van Duzen Gas & Gasoline Engine Company as a “vise hand.” He was, in an emergency, called by the foreman from his usual and customary employment to assist in the adjustment of a pump shaft on a pump attached to a gasoline engine, near which at the time was a circular saw then in motion. This saw, by the culpable negligence of the company, was not protected. The shafting which he was ordered to adjust was close, and next to, this revolving saw. Schelies when ordered to perform this service protested, and suggested to the foreman that it was not safe to attempt to do so without first stopping the saw. Thereupon the foreman peremptorily renewed his order, commanding Schelies to proceed with the work. He obeyed this order, using ordinary care, but his clothing was caught by the saw, he was drawn over and on to it, and was thereby seriously injured. Upon these facts and under these circumstances it was held, that what passed between the master and the servant should be held to operate as a transfer of the risk from the servant to the master, and should be considered, and treated as an assumption by the latter of that particular risk. It was not intended by the decision in the Van Duzen case to overthrow and abolish, in Ohio, the entire doctrine of assumption of risk, for the court in that case say: “It therefore follows that the servant can have no relief against his master for injuries resulting from known and obvious dangers, avoidable by ordinary care, however culpable the master may be in the matter. All such injuries, togethef with such as happen where there is no fault on the part of the master, are in the ordinary language of the law, assumed by the servant.” Recognizing and affirming the rule thus stated, to be the well settled -general rule of law, the court in that case denied to the master the right to invoke its protection, only because it was there shown that the master had waived such right, by the doing of that which under the facts and circumstances proven, amounted on its part, to the assumption by it of the particular risk.

The case at bar presents no such conditions, or state of facts, as was shown to exist in that case, and is therefore, we think, clearly distinguishable from it. In the present case the evidence does not show that Johnston, the employe, was suddenly called from one. department or kind of work, to another, but does show that at the time he was injured, he was then engaged in precisely the same character of work he had been performing daily for at least five years. This work was simple, and the risk and dangers, if any, open and apparent. Johnston was an experienced hand in that particular -work, and there is no evidence even tending to show that the injury he received resulted from any incapacity on his part to understand the character and requirements of the work in which he was then engaged. Again, in this case the order given to the workmen was not a peremptory order, as in the Van Duzen case. What the foreman said, and all he said was: “I have been around, boys, to try to get other men; but you boys do the best you can, I want you to help me out. I don’t want you men to catch the spar until I give the word; when I give the word I want every man to catch hold of it and lift what he can.” This, as shown by the record, was simply an order or direction to • the men to go about the work in the usual way, although perhaps with a less number than were usually employed in moving said spar. The handling of this spar required no special skill, arid involved no risk or peril" except such'as was perfectly obvious to every one. Johnston knew its weight, or at least that it was heavy, and he knew the number of men ordinarily employed in handling it. He knew the conditions and circumstances under which the spar was” to be handled on this particular-occasion, how the work was to be done, and if four men were insufficient to handle it prudently, he knew it. In fact, it does not appear from the record in this case that there was any fact, circumstance or condition within the knowledge of the company that was not equally well known to, and understood by, Johnston. Upon these facts Johnston was not entitled to recover. Pennsylvania Co. v. McCurdy, 66 Ohio St., 118. And the trial court at the close of the evidence, when so requested, should have instructed the jury to return a verdict for the defendant. The judgments of the courts below must be reversed and judgment will be entered by this court for the plaintiff in error..

Reversed.

Shauck, C. J., Summers and Davis, JJ. concur.


source: Caselaw Access Project

author: Price, J. Davis, J:,

license: Public Domain

text:
    Aetna Insurance Company v. The StambaughThompson Company.

      Revocation of agent’s authority — Persons previously dealing with agent — Entitled to notice of agent’s discontinuance — Insurance agent receives policy for cancellation — Authority previously revoked — No notice to insured — Insurance company hound— Law of agency — Law of insurance.

    1. Persons dealing with one who has recently been a duly authorized and acting agent of another in the transaction of a particular line of business, have a right to rely upon the continuance of his authority to transact business of a similiar character for his principal, until they are in some way informed of the revocation of this authority.
    2. On the first day of April, 1904, through the agency of L., the C. insurance company issued a one year fire insurance policy on a stock of goods, etc., belonging to the S. & T. company, on which property there was concurrent insurance. L. was also agent at the same time and place of the A. insurance company. On the 29th day of April,- 1904, his authority to represent the C. company was revoked, but no notice of this fact was given to the insured prior to the fire.
    On the 21st day of May, 1904, and while L. was the duly authorized agent of the A. company, he went to the insured and represented that he had been informed by the C. company" that it was carrying' more insurance in that block than it desired, and that if the insured would surrender the policy in that company, he would at once deliver in its stead a policy for the same amount and on the same terms in the A. company, and produced the policy already prepared and duly executed by the proper officers. Thereupon, at his request, the insured, believing L. still to be the agent of the C. company, delivered to him for cancellation the policy' in that company and accepted in lieu thereof the policy issued by the A. company. •
    After L. had so delivered the latter policy and received the other, he left the building, and shortly after his departure a fire started in the stock of goods so insured by which they were greatly 'damaged and partly destroyed, after which L. handed back the. policy in the C. company, but the insured retained the policy issued by the A. company, and brought suit to recover its pro rata share of the loss.

      Held:
    1. That on the foregoing facts, the insured had a right to rely upoñ a continuance of the authority of L. to represent the C. company, and the delivery of said policy to him for cancellation binds that company.
    2. L. being at the same time the duly authorized agent of the A. company for the soliciting of insurance therein, and having delivered to the insured its duly executed policy as a substitute for ■ the former policy in the C. company,-the A. compány is liable.
    (No. 10113
    Decided March 19, 1907.)
    Error to the Circuit Court of Mahoning County.
    On the 5th day of December, 1904, the defendant in error brought suit against the plaintiff in error to rec'over on a policy of fire insurance issued by it on the 20th day of May, 1904, to be operative from noon of that day until noon of the 1st day of April, 1905. The policy covered a stock of general merchandise, such as hardware, glass, cutlery, nails, mantels, stoves, harness, etc.,, also store' and office furniture, show cases, plumbers’ tools, supplies, etc. The liability of the insurance company should not exceed $3,500, and there was concurrent insurance in a large amount.
    The petition contains the usual allegations, which show that on the 21st day of May, 1904, the stock and other insured property was damaged and partially destroyed by fire, of which the insurer had profnpt notice; that proper proofs of loss were made and delivered to the insurer within the time stipulated and that the insured in all other respects performed the conditions imposed by the policy. The prayer is for judgment in the sum of $2,195.87, with interest from date of the loss.

      The insurance company filed an amended answer, in which it denies the issuance and delivery of the policy sued on at any time, and specifically denies that it issued the policy attached to the petition; and it denies that there was concurrent insurance in any sum upon said property, with its consent; and denies th.at plaintiff has complied with the conditions of any contract with it, and denies that proofs of loss were furnished to it under any policy of insurance.
    The answer contains the affirmative allegations, that prior to the 21st day of May, 1904, the plaintiff had $80,600 insurance on the property described in the petition, but that said insurance was written by companies other than the defendant; that on the'first day of April, 1904, The Connecticut Fire Insurance Company executed and delivered its policy covering said property in the sum of $3,500 for the term of one year from and after said date, and that it constituted a part of the $80,000 insurance covering said property, which' was in force at the time of the fire, and that said policy issued by the Connecticut Fire Insurance Company was in full force at the time of said fire; that on the 29th day of April, 1904, the authority of Y. J. Lamb to act as agent for said company was revoked, and that thereafter he had no authority to represent said company in any respect, and that the defendant company had no knowledge that said Lamb was at any time the authorized agent of said Connecticut Fire Insurance Company, or that said Lamb had ceased to be the agent of said company. '
    It is further alleged that on said 21st day of May, 1904, and for a long time prior thereto, and thereafter, the said Lamb was the duly authorized and legal agent of the defendant. It is next alleged that said Lamb, on said 21st day of May, 1904, without the knowledge or consent of' said Connecticut Fire Insurance Company, requested plaintiff to consent to a cancellation of said policy issued by the latter company, and further requested plaintiff to accept in lieu 'thereof and as a substitute therefor, the policy of the defendant for the unexpired time that said Connecticut policy had yet to run. Thereupon the plaintiff agreed with , said Lamb to cancel the said Connecticut policy, upon the express understanding that the defendant would issue its policy of insurance for the unexpired term of the other policy, for the’same amount and covering the same propert)*-, and upon the same terms and conditions, and to take effect as a substitute for the Connecticut policy as-soon as it was duly cancelled; that said Lamb, acting as agent for the defendant, but without its knowledge, and without the knowledge or consent of the ■Connecticut company, agreed with the plaintiff to cancel said Connecticut policy, and to substitute therefor the policy of the defendant, and thereupon wrote and delivered to plaintiff the policy of defendant described in the petition, with the agreement that it should not take effect until said Connecticut policy was fully and legally cancelled; that pursuant to the above agreements said Lamb delivered to plaintiff the said policy of defendant on the 21 st day of May, 1904, and received from the plaintiff said Connecticut policy, and that within five minutes after the delivery of the defendant’s policy and the receiving of the Connecticut policy, a fire was started, which damaged and destroyed the property described in the petition; that when the said fire started said Lamb had in his possession said Connecticut policy, and continued to retain possession thereof until said fire had almost destroyed said property, at which time he delivered the Connecticut policy to plaintiff, and the plaintiff accepted and has since retained the same.
    It is further averred that neither of said insurance companies knew of what said Lamb had done until several days thereafter, when defendant notified the plaintiff that it would not stand by the acts of said Lamb, and that said Connecticut policy was never cancelled, but was in full force at the time of the fire.
    The reply admits the issuance and delivery of said Connecticut policy, through the agency of Lamb, on the 1st of April, 1904, which covered .the property injured, but that it was cancelled prior to the fire and the policy of defendant issued and delivered to take its place. The reply further says, that if said Lamb was not the agent of the Connecticut company at the time of said cancellation and was not authorized to act as said agent, such facts were unknown to plaintiff, as said Lamb well knew, when he substituted the defendant’s policy for that of the other company.
    The foregoing is a summary of the issues made in the pleadings. Additional facts appear in the opinion.
    A jury was waived and the case .tried to the court, who found for the plaintiff in the amount prayed for and rendered judgment accordingly, which judgment was affirmed by the circuit court.
    The case is here on error to reverse both judgments.

      Mr. J. W. Mooney, for plaintiff in error.
    Agreement for cancellation was conditional. Guenther on Ohio Insurance Law; Kerr v. Insurance Co., 117 Fed. Rep., 442; Arnfeld & Son v. Assurance Co., 172 Pa. St., 605.
    If the agreement for the cancellation of the policy issued” by the Connecticut Fire Insurance Company and the substitution of the policy of the Aetna Insurance Company had not been fully completed before the fire started, it was too late thereafter to consummate the agreement by ratification. Stebbins v. Insurance Co., 60 N. H., 65; Insurance Co. v. McKenzie, 70 Ill. App., 615; Insurance Co. v. Kerr, 129 Fed. Rep., 724; Kerr v. Insurance Co., 117 Fed. Rep., 442.
    The policy issued by the Connecticut Fire Insurance Company was not cancelled before the fire.
    If the defendant in error had the right to reject the unauthorized act, of which there can be no doubt, there was no legal agreement for the cancellation of the Connecticut fire insurance policy, prior to the fire. If in law, the defendant in error had a right to reject the unauthorized act of Mr. Lamb, the mere fact that the Connecticut Fire Insurance Company was bound and was willing to ratify the unauthorized act of Mr. Lamb, this would not make a valid agreement, fpr the reason the contract'-was not mutual, both parties must be bound or neither. Dodge v. Hopkins, 14 Wis., 630; Clark & Skyles on Law of Agency, page 372; Atlee et al. v. Bartholomew et al., 69 Wis., 43; Townsend et al. v. Corning, 23 Wend. (N. Y.), 435; Reinhard on Agency, par. 153, page 154; Mechera on Agency, Sections 112, 131, 132, 179b; Rolling Stock Co. v. Railroad Co., 34 Ohio St., 450.
    The unauthorized act of Mr. Lamb could not be ratified after the fire.
    It is a well settled principle of law that a party may ratify a previous or authorized act of another, which he might then, and could still lawfully do himself, and which he might then and could still lawfully delegate to such other to do. In other words, it is essential that the act sought to be ratified could be done at the time of ratification. The defendant in error could not ratify the unauthorized act of Mr. Lamb after the fire, and therefore there could be no ratification by the defendant in error, of the unauthorized act of Mr. Lamb. Zottman v. City of San Francisco, 20 Cal., 96; 81 Am. Dec., 96; McCracken v. City of San Francisco, 16 Cal., 619; Brady v. Mayor et al., 16 How. Pr., 432; O’Conner v. Arnold et al., 53 Ind., 205; Armitage v. Widoe, 36 Mich., 124; Supervisors v. Arrighi, 54 Miss., 668; Township of Taymouth v. Koehler, 35 Mich., 22; Clarke v. Lyon County, 8 Nev., 188.
    After the fire the defendant refused to ratify the acts of Mr. Lamb.
    The acts of Mr. Lamb being unauthorized, the defendant in error had a right to reject and repudiate the agreement on that ground. And this was so, even if the Connecticut Fire' Insurance Company was bound by'the acts of Mr. Lamb. The rejection of the agreement on the part of the defendant in error, left the policy issued by the Connecticut Fire Insurance ■ Company in force, and, as a matter of law, the policy issued by the Aetna Insurance Company could not and did not take effect under the agreement, for a conditional cancellation of the policy. The agreement being one for a substitution of the Aetna policy for the Connecticut policy, it would therefore follow that there was no liability on the part of the plaintiff in error.
    We now come to the question whether Mr. Lamb could legally act as the agent for both companies in the transaction. It is against the policy of the law, as well as against good morals, to permit the same person to act as the agent of two or more separate principals in the same transaction. •An agent can not serve two*masters, for either he will hate the one and love the other, or else he will hold the one and despise the other.
    It is our contention that the agreement being one for a conditional cancellation of the policy issued by the Connecticut Fire Insurance Company and the substitution of the Aetna policy, or one of reinsuring the Connecticut Fire Insurance Company by the Aetna Insurance Company, that Mr. Lamb could not act for both of these companies, unless with the knowledge and consent of both companies. Joyce on Insurance, Volume 1, Section 661; Bell v. McConnell, 37 Ohio St., 396; 41 Am. Rep., 528; Insurance Co. v. Insurance Co., 138 N. Y., 446; Lee v. Smith, Assignee, 84 Mo., 304; Mechem on Agency, Section 67; Copeland, v. Insurance Co., 6 Pick., 198; Insurance Co. v. Insurance Co., 14 N. Y., 85; Meyer v. Hanchett, 39 Wis., 419; 43 Wis., 246; Greenwood v. Spring et al., 54 Barb., 375; Sumner v. Railroad Co., 78 N. Car., 289; Shirland v. Iron Works Co.; 41 Wis., 162; Bray v. Morse, 41 Wis., 343; Rice et al. v. Wood, 113 Mass., 133; 18 Am. Rep., 459; Stewart v. Mather et al., 32 Wis., 344; Farnsworth et al. v. Brunquest et al., 36 Wis., 202; Farnsworth v. Hemmer, 1 Allen, 494; Walker v. Osgood, 98 Mass., 348; 93 Am. Dec., 168; Raisin v. Clark, 41 Md., 158; 20 Am. Rep., 66; Lynch v. Fallon, 11 R. I., 311; 23 Am. Rep., 458; Pugsley v. Murray, 4 E. D. Smith, 245; Everhart v. Searle, 71 Pa. St., 256; Scribner et al. v. Collar, 40 Mich, 375; Insurance Co. v. Insurance Co., 20 Barb., 468; May on Insurance, Section 125; Cooley on Insurance, page 351; Insurance Co. v. McKenzie, 70 Ill. App., 615.

      Messrs. Móore & Craver and Mr. W. G. Guenther, for defendant in error.
    1. Was there any condition attached to the . cancellation of the policy of the Connecticut Fire Insurance Company? That the cancellation of the Connecticut's policy was unconditional, is evident from the testimony of Mr. Vallance, who was the employe of defendant in error, having full charge' of its insurance affairs.
    Mr. Vallance supposed that Lamb, who had 'issued the Connecticut's policy and claimed still to be its agent, was such agent and authorized to accept the surrender of the policy.
    There was, of course, this condition attached by Mr. Vallance to the surrender of the Connecticut’s policy; viz., that one of the Aetna’s, for like amount and with like conditions, was to be. delivered to the Stambaugh-Thompson Company to take the place of the former policy, but this condition was, before the fire, fully complied with by plaintiff in error, through its duly authorized agent, delivering its policy to defendant in error.

      If the citation from Guenther on Insurance in plaintiff in error’s brief be at all apropos, it will be seen that the condition referred to as precedent to the cancellation taking effect has here been fully complied with, viz., there was delivered to the insured a valid and binding policy to take the place of the one cancelled.
    2. Was Mr. Lamb a proper person to whom "the policy of the Connecticut Fire Insurance Company might be delivered for the purpose of cancellation so as to make such cancellation effective?
    ■ (a) Was Lamb the agent of the Connecticut Fire Insurance Company as regards its policy issued to defendant in error until the latter had been given notice of the revocation of. the agent’s authority ?
    Mr. Lamb had been .the agent of the Connnecticut Fire Insurance Company and had issued its policy/ to the defendant in error. The latter had no knowledge that his authority had been revoked.
    The defendant in error had no knowledge of the revocation of his authority, and certainly would have every right to suppose that the person who was the general agent of that insurance company on April 1st, was telling the truth when, on May 21st, he represented himself to be still the agent of that company.
    In Ish v. Crane et al., 8 Ohio St., 520, the liability of the principal for the acts of an agent whose authority has been revoked, but without notice of such revocation to third parties with whom such agent deals, is fully considered.
    This question was again considered in Ish v. Crane et al., 13 Ohio St., 574, and the doctrine reaffirmed. Insurance Co. v. Threlkeld, 60 Ark., 539; Insurance Co. v. McClain, 96 U. S., 84; Insurance Co. v. Davis, 37 S. W. Rep., 582.
    (b) Did Section 3644, Revised Statutes, make Mr. Lamb the agent of the Connecticut Fire Insurance Company in all matters pertaining to its policy issued to defendant in error?
    We insist that by the terms of this statute, Mr. Lamb was made the agent of the insurance company for all purposes in relation to its policy to defendant in error, and that neither that company nor any one else can deny his authority as such agent.
    It would be a queer rule, if, in the face of this statute and in the absence of knowledge of the revocation of his authority, a policy holder would be obliged to positively inform himself of the authority of the agent before he could safely deliver up his policy to such former agent for cancellation.
    If the person who procures the application for insurance be, by the statute, the agent of the insurer even as to renewal policies — a matter requiring the exercise of discretion and judgment — what reason can be advanced for denying his right to act as such agent in the mere acceptance of the surrender of the policy for cancellation where his duties are simply those of an automaton?
    (c) Is plaintiff in error estopped from denying the authority of Mr. Lamb to receive the surrender of the policy of the Connecticut Fire Insurance Company?
    But if we err in our contention that, for the reasons above given, the surrender of the Connecticut’s policy to Lamb operated as a surrender of the policy to the duly authorized agent of that company, does it now lie in the mouth of Lamb’s employer, the plaintiff in error, to say that Lamb was not authorized to accept the surrender of such policy?
    It undertook through its duly authorized agent to take away from a rival company some of its business and to secure that business for itself. By its acts, it induced the defendant in error to part with and surrender up for cancellation its policy with the Connecticut Fire Insurance Company.
    It is too late for plaintiff in error now to say that its own agent secured this new business by misrepresentation and that he had no right to accept the surrender' of the other- policy and to substitute therefor its own policy.
    When Lamb, by his misrepresentations, secured this business for his principal, the plaintiff in error, he acted deliberately with full knowledge of all the facts, including defendant in error’s ignorance of the revocation of his authority.
    Upon the proposition that the act of the agent is the act of the principal and that the acts of the agent may work -an estoppel against the principal we cite Mtiy on Insurance, Sections 141, 142 and 143-
    3. Was any action upon the part of the Connecticut Fire Insurance Company necessary to make the cancellation effective? The provision of the surrendered policy with respect to this matter is the one found in all standard insurance policies and is as follows:
    “This policy shall be cancelled at any time at the request of the insured, or by the company, by giving five days’ notice of such cancellation.”
    All standard policies contain the provision that the company may cancel by giving five days’ notice of such cancellation; of course, no subsequent policy, conditioned upon' the cancellation of the first, can take effect until the five days’ notice required for the cancellation of the former policy has expired, nor does this policy cease to be valid until the expiration of such time.
    In the case of the assured no. such notice is necessary, nor is any surrender of the policy required. A bare request for cancellation made by the insured is sufficient. Iron Co. v. Insurance Co , 127 N. Y., 608; Insurance Commissioner v. Insurance Co., 68 N. H., 51; Train v. Insurance Co., 62 N. Y., 598; 68 N. Y., 208.
    4. Could the status of the parties, as it existed at the time the fire broke out, be in 'any wise changed by the acts of the defendant in error subsequent thereto ?
    Counsel for plaintiff in error argues at length and ably the proposition that, if the cancellation of the one policy and the substitution therefor of the other did not become effective before the fire started, it was too late thereafter to make the cancellation effective.
    We certainly do not demur to this contention; but counsel immediately proceeds to argue in favor of a proposition absolutely inconsistent with this position, viz.: That because the Connecticut’s policy was handed back by Lamb to defendant in error after the fire broke out, such policy should not be considered as cancelled and the Aetna’s in force.
    It appears to us too plain for argument that the rights and obligations of the parties could not be affected by anything that any of them did subsequent to the fire with reference to ratifying or repudiating the actions of Mr. Lamb. If the Connecticut's policy was cancelled and the Aetna's valid when the fire broke out, defendant in error could not, even if .it had sought to re-exclrange the policies thereafter, change the respective rights and obligations of the insurance companies. On the other hand, if the cancellation of the Connecticut’s policy, brought about by its surrender, was hot complete when the fire broke out, no action of the Connecticut Fire Insurance Company or of the defendant in error could make it so. Insurance Co. v. Insurance Co., 55 N. Y., 343.
   Price, J.

The material facts of this case are not seriously in dispute. The first paragraph of the answer makes denial of some of the averments of the petition, but thé balance of the answer gives ,an affirmative statement of what the defendant, the Aetna Insurance Company, claims the real transactions between it, the Stambaugh-Thompson Company and The Connecticut Fire Insurance Company were, preceding the fire. ^

One V. J. Lamb, on the first day of April, 1904, and for some time prior thereto, had been a local agent for The Connecticut Fire Insurance Company, and was located in the city of Youngstown, Ohio, in which was the store and place of business of the Stambaugh-Thompson Company. Through his agency, said Insurance Company, on- the 1st day of April, 1904, issued and delivered to The Stambaugh-Thompson Company-a policy tof insurance in the sum of $3,500, covering the stock of goods and other merchandise described in the petition. There was other concurrent insurance at that time of over $75,000. The premium was $30.15, but was not paid until after the fire. On or about the 29th day of April, 1904, the authority of Lamb to represent in any respect said Insurance Company was revoked, and at the time of the fire on the 21st day of May, 1904, said Lamb was not the agent • of said company, but The Stambaugh-Thompso.n Company believed that he was, and had no notice or knowledge then of the fact that his agency had been revoked. Prior to the fire, and on that day, said Lamb was the agent in said city of the Aetna Insurance Company, and had authority' to fill up blank insurance policies issued by that company, which had been signed by its proper officers and delivered to him, so that the said agent, when he desired, could fill said blanks, and when so filled and the policy countersigned by him, the same would become effective on delivery to the insured without further action on the part of the company. There is ño dispute in this court, and there was not much in the trial court, about the following prominent facts: In the forenoon of the 21st day of May, 1904, and some time preceding the fire, Lamb met Mr. Val-lance, of The Stambaugh-Thompson Company, on the street in Youngstown, not far from the store, and informed Vallance that The Connecticut Fire Insurance Company had communicated to him, Lamb, that it had more insurance in that block than it cared to carry, and that he had transferred it into another company. When asked by Vallance what company he referred to, Lamb replied, the Aetna. Vallance, who was in charge of the insurance affairs of Stambaugh-Thompson Company, expressed his satisfaction with the Aetna and directed Lamb to go to the office in the store and tell Mr. Freed, a bookkeeper there, of the arrangement, and that he should hand over to Lamb the policy issued by The Connecticut Fire Insurance Company and take in its place the policy of the Aetna Company, all of which was done. The Aetna policy was delivered and the Connecticut policy surrendered to Mr. Lamb. These policies were for the same amount and on same conditions. After Lamb had taken possession, of the Connecticut policy he left the building and when on the street, a very few minutes after leaving the store, he heard the fire alarm and soon ascertained that a fire had started in the store of The Stambaugh-Thompson Company which he had so recently left. The fire was in the rear and upper part of the building. During the progress of the conflagration Lamb, uncertain as to what course he should pursue, handed the Connecticut policy to Mr. Stambaugh, president of The Stambaugh-Thompson Company, and he retained it, as well as the policy issued by the Aetna Company. The insured company, two or three days after the fire, paid the premium on the Connecticut policy for the entire term for which it was issued, and at the same time paid the premium for the Aetna policy. The latter company returned the premium to the insured, but it was again sent to the office of Mr. Lamb, its agent. Proper proofs of loss were made to both companies, and - there is no dispute concerning them, or the amount of the loss, but each company declined-to pay it, and hence the suit under review.

It is not claimed that the fire had started at the time the policies were exchanged, nor is there any evidence to support such claim if it were .made. Therefore the liability of the insurance company must be determined from its status at.that important crisis. It was not intended or understood that both policies should be binding, but that the Aetna should be a substitute for the other policy. Therefore, on the facts narrated,-is the Aetna Company liable? The answer to this question is to a large extent dependable upon the right of the insured to regard and deal with Lamb as the representative of the Connecticut Company. If the revocation of his agency in April preceding the fire was effective as to third persons who were not apprised’ of such revocation, then the transactions between Lamb and the insured prior to the fire were void, and there was no valid cancellation of the policy issued by that company. The lifting or taking up of such policy on one side and its surrender to him by the insured was of no avail. But the general rule of revocation of agency does not prevail on the facts of this case, because it is undisputed that thé Stambaugh-Thompson Company had no notice or knowledge that the agency had been revoked, and having dealt with Lamb in the placing of the Connecticut Company policy, on the 1st of April just preceding, it believed he was still its agent at the time the exchange of policies was made. Under such circumstances, and for the purposes of the exchange, the law regarded Lamb as still the representative of that company. This proposition of the law of agency is not contested, but is agreed upon as the rule that should govern this case. It is the rule recognized in Ish v. Crane et al., 8 Ohio St., 520; same parties in 13 Ohio St., 574. See also Springfield F. & M. Ins. Co. v. Davis, 37 S. W. Rep., 582; Burlington Ins. Co. v. Threlkeld, 60 Ark., 539; Southern Life Ins. Co. v. McCain, 96 U. S., 84. There are many other supporting authorities, but as the rule is conceded, we need not cite them.

We are now brought to the ■ question, was the Connecticut policy cancelled prior to the fire? As we have already said, it is agreed upon all hands, that both policies were not to be in force, for that would have created additional insurance' when such was not the purpose of the parties. It is earnestly urged for plaintiff in error that there was no .valid cancellation effected; that at the most, there was but a conditionál cancellation, and that statement implies that something had to be done or said -by the Connecticut Company, after the Stambaugh-Thompson Company surrendered the policy to Lamb, and that as 'nothing was said or done by the company towards the completion of a cancellation, then in fact and law none was made.

The policy contains the following provision: “This policy shall be cancelled at any time at the request of the insured; or, by the company by giving •five days’ notice of such cancellation. If this policy shall be cancelled as hereinbefore provided, or become' void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that if this policy is cancelled by this company giving notice, it shall retain only the pro rata premium.”

If the company exercises the right of cancellation it must give five .days’ notice thereof, so that the insured may procure other insurance, and until the expiration of the five days the policy is in full force. On' the other hand, it is sufficient if the insured request its cancellation of the company or its agent for that purpose, and with such request delivers the policy to the company or such agent. No agreement for cancellation is necessary. If the company desires to cancel and gives the five days’ notice, it can cancel despite the protest of the insured, for his consent is not essential. No meeting of the minds is necessary, and no act on his part is necessary. And, if the insured desires a cancellation, he may request it and surrender the policy to the proper party for that purpose. Train v. The Holland Purchase Ins. Co., 62 N. Y., 598; same parties, 68 N. Y., 208.

As said by the court of appeals in Crown Point Iron Co. v. Aetna Ins. Co., 127 N. Y., 608: “While a method of terminating the insurance upon the motion of the insured is not specified, except that the insured party is to request it, the language of the contract indicates that the subject is within his control and that the terminating act is to be done by him alone, without any concurrent or supplemental act on the part of the company. * * * While it takes two to make a contract, one may end it, if the contract itself so provides.”

And again, on page 615, the same court says: “Although the language of the parties is at the ‘request’ of the insured in one instance, an on ^notice’ to the insured in the other, we think that in both it is within the power of the party desiring to end the contract to do so without either consent or action on the part of the other. When the insured surrenders the policy and requests that it be can-celled, he can do no more. Unless that ends the contract he is powerless to end it, and the company, while able itself to hang on or let go as it wishes, can hold him against his will.”

We have seen in the statement of facts in the case before us, that the surrender of the Connecticut policy and the substitution of the Aetna policy was had in pursuance of an agreement between the insured and Lamb, who, as the insured believed, still represented the Connecticut Company. The very act of surrendering one policy and accepting the other in its stead implies both request and direction that the first be cancelled. The insured could go no further or do more. What marks may be put on the policy or entries made on the books of the company is a matter of its own. Regarding Lamb as the agent of the Connecticut Company, as we must do, because StambaughThompson Company believed him still to be such agent, where is there any conditional cancellation in this case? True, after the fire or near the end of its work, Lamb handed back the Connecticut policy, but that was useless, for, as already stated, the status of the insurance companies, for weal or woe, became unalterably fixed by the starting of the fire, and neither the return of that policy nor the subsequent payment of its premium by the insured changed the relations of the parties.

But another proposition is urged against the liability of the Aetna Company. It is stated on page twenty-five of brief for plaintiff in error in the following language: “If the defendant in error (The Stambaugh-Thompson Company) had the right to reject the unauthorized act (of Lamb), of which there can be no doubt, there was no legal agreement for the cancellation of the Connecticut fire insurance policy prior to the fire. If, in law, the defendant in error had the right to reject the unauthorized act of Mr. Lamb, the mere fact that the Connecticut Fire Insurance Company was bound and was willing to ratify the unauthorized act of Mr. Lamb, this would • not make a valid agreement, for the reason the contract was not mutual, both parties must be bound or neither.” A very plausible argument is constructed on this proposition, and several authorities cited and quoted from to support it, such as Dodge v. Hopkins, 14 Wis., 630; Atlee et al. v. Bartholomew et al., 69 Wis., 43; Townsend et al. v. Corning, 23 Wend., 435; Mechem on Agency, and other textbooks. On page twenty-four of the same brief, counsel for plaintiff in error say: “We contend' that the defendant in error was not bound by the unauthorized act of Mr. Lamb. The defendant in error had the option, upon discovering that Mr. Lamb acted without authority for the Connecticut Fire Insurance Company to reject or ratify the un- . authorized act of Mr. Lamb, if a ratiñcation of such a contract could be had after the fire.”

It may be said, that the general rule of law embraced in the quoted statements of counsel is not disputed, but it does not control under the facts of' the present case. We must not lose sight of the principle; already stated, and upon which counsel for these contesting parties agree, that the status of the two companies' and the insured at the beginning of the fire is to be reckoned with in working out their rights. And it is more than doubtful that. a ratification or repudiation of the act of Lamb by the Connecticut Company after the fire could in any way affect its liability. At any rate, there is nothing in the record to show that said company did repudiate Lamb’s acts after the fire. It is quite clear that the insured did hot repudiate' what had been done, for. it insists on holding on to the fruits of the substitution of the Aetna policy. Beyond all cavil, Lamb” was the authorized agent of the latter company at the time of the exchange of policies, and it is in no condition to reject or repudiate what Lamb did. Therefore we have no facts in this case upon which to predicate the propositions and authorities of learned counsel. His quotation from' Clark & Skyles on the Law of Agency, 372, is that “the ratification of a contract entered into by a person acting as agent, but without authority so to do, made by a person for whom he assumed to act as principal, can not validate the contract so as to bind and be in force against the other party without his consent.” This is, in substance, the doctrine of the third section of the syllabus in Atlee et al. v. Bartholomew et al., 69 Wis., 43, cited for plaintiff in error. Who is the “other party” without whose consent the ratification is of no avail in the language quoted? Certainly not the Aetna Insurance Company, but rather The StambaughThompson Company. It has not rejected the acts of Lamb, but consents, if consent can be given, that his acts shall stand, and it is now endeavoring to enforce its rights under the acts of Lamb.

And so with the case of Dodge v. Hopkins, 14 Wis., 630, and other authorities cited. In that case a land contract was involved and the following from the syllabus shows what was decided, bearing upon the subject of agency: “Where a contract for the sale of land is not binding upon the owner of the land, because made by a person who assumed to act as his agent without any authority, it is not binding upon the other party. No subsequent act of the owner in ratification of the contract could make it obligatory upon the other party without his assent. If part of the purchase money was paid to the agent, the owner of the land was. at liberty to reject it, and his subsequent acceptance of it, being an act with which the other party was in no way connected, imposed no obligation on the latter until he actully assented to it.” This represents the sum and substance of all the authorities cited on the subject we are now discussing, although they are couched in different forms of expression. If we can apply the law so announced to the present case, The StambaughThompson Company — “the other party” in the legal figure, was not bound by the unauthorized acts of Lamb until it assented thereto. And it is clear here that if assent could be given after the fire, which we need not decide, it has been given and is relied upon. But if the assent could not be given after the fire it is because that event determined the relative position of the parties, and neither assent or dissent thereafter could alter their rights. The insured could then stand upon the strength which the law gives to an assumed agency on the part of Lamb upon which the insured relied in good faith.

Hence, the doctrine invoked by plaintiff in error does not give" relief.

However, it is said for plaintiff in error, in one branch of its brief, that the defendant in error, by certain acts, clearly indicated its intention to and did refuse to ratify the unauthorized acts of Lamb; and in another branch it is baldly asserted that “the defendant in error could not ratify the unauthorized acts of Lamb after the fire,, and therefore there could be no ratification by the defendant in error, of the unauthorized act of Lamb.” These statements are inconsistent. If the defendant in error could not ratify Lamb’s acts after the fire, it would seem true; also, that a refusal 'or neglect to ratify after the fire would be a vain thing. The peculiar circumstance of the fire following so soon upon the heels of the exchange no doubt tended to confuse the insured — each company claiming to be exempt, and this may account for proofs of loss and payment of premiums to both.

It is further claimed that Lamb, in the transaction of negotiating an exchange of policies, was exercising a double agency, which rendered the transaction void, inasmuch as the insured knew that he was attempting to act as agent for each of the insurance companies. The plaintiff in error states its claim in the language of the court in The Empire State Ins. Co. v. American Central Ins. Co., 138 N. Y., 446, where it is said: “A person who is employed as agent by .two principals may not, without their assent, act for both in making a contract between them in a matter where he is invested with a discretion by each, and in which each is entitled to the benefit of his skill and judgment, and a contract so negotiated is void at the option of a non-assenting party.” In pur case, the agent Lamb was not engaged in making a contract between the two insurance companies — the two principals involved in the rule — nor was there any such contract made, and therefore the discretion, skill and judgment of the agent were not exercised in any contract made by him .between two principals. It is not intimated that in the substitution of the Aetna for the other policy, Lamb was also acting as the agent of the insured, and we must again observe that the authorities cited do not fit the case under review, for the- agent did not make a contract between the two principals. He acted severally for each company.

But is the Aetna company in a position to claim the benefit of the rule invoked? Lamb was its agent, and having been let out of the service of the Connecticut Company he encouraged an ambition to take some of the latter’s business and give it to the former. In getting business away from another company he was acting within the scope of his authority as agent of the Aetna, although he was not instructed to use falsehood or dishonest means to obtain it. Assuming also to represent the Connecticut, as once had been his relation, he accepts a surrender of the latter’s policy and.substitutes that of the Aetna. If he prevaricated in his course of conduct with the insured, he was the prevaricator of the Aetna Company, and we are unable to see how it can evade the consequences of his act.

We find no substantial error in the judgment of the circuit court and the same is affirmed.

Judgment affirmed.

Shauck, C. J., Crew, Summers and Spear, JJ., concur.

Davis, J:,

dissenting. This case is a contest between the two insurance companies. Plaintiff below, defendant in error here, is a merely nominal party; for it was conceded in the oral argument that if the plaintiff in error should prevail in this action the Connecticut company would be liable and would pay its proportion of the loss without further contention. Yet the majority opinion.is grounded on the proposition that the insured was ignorant of the fact that Lamb was no longer the agent of the Connecticut company and therefore had the right to elect to treat him as the agent of that company and to hold his acts to be a revocation of that company’s contract. I see no reason to controvert that proposition here, but in my opinion it has no application in a controversy between the two insurance companies. And it seems very plain to me that'in this case, in which each of the insurance companies is trying to escape liability and put it upon the other, it does not lie in the mouth of the Connecticut company to repudiate Lamb as its agent and in the same breath claim him to be its agent for the purpose of abrogating its contract, an agency which it is' more than probable that it would have also repudiated if no loss had occurred. Neither could Lamb act as the agent of both companies in a matter in which their interests were, or might become, adverse. In these respects and in several others' ably set forth in the brief of counsel for the plaintiff in error, it appears to me that the decision of the majority runs counter to settled principles of the law; and that it has no justification whatever, unless it be as a .punishment to the plaintiff in error for having unwittingly employed an unprincipled man as its agent.


author: Shaucic, C. J.

text:
    Weaver v. The Columbus, Shawnee and Hocking Railway Company.

      Jurisdiction in error of the circuit court — Section 6709, Revised Statutes — Presumption that circuit coiirt passes upon all assignments in petition — Defendant in error must print and Ule record —To show assignments claimed improperly overruled, when— Court procedure — Railway company operating trains over crossings obscured by buildings — Care required of railroad — Law of negligence.

    1. It results from the provisions of Section 6709, Revised Statutes, that in all subsequent proceedings the presumption must be indulged that the circuit court passes upon all assignments in a petition in error prosecuted before it, and that when it reverses a judgment of the court of common pleas it holds all assignments of error to be not well taken except such as, in its mandate, may be stated as the basis of its judgment of reversal.
    2. A petition in error prosecuted in this court for the reversal of a judgment of reversal rendered by the circuit court meets a presumption in favor of the entire record of that court, including its express or implied holding against all assignments of error there made, and not specified as ground of reversal.
    3. ' When, in such case, the plaintiff in error in this court has printed so much of the record as will show the error of which he complains, and the defendant in error desires to support the judgment of reversal which he has recovered in the circuit court by showing that it should have been rendered upon assignments of error which were there expressly or impliedly overruled, he should, within the time fixed for the filing of his brief, print and file so much of the record as in connection with the printed record already filed, will show that such assignments were improperly overruled.
    4. When a railway company operates its trains over a highway crossing at grade in a municipality where buildings are so situated as to obscure the approach of trains, it is charged with the duty of exercising care commensurate with the danger there existing, although that may exceed the giving of signals by bell and whistle; but it is not the insurer of the safety of travelers using the crossing, though in so doing they exercise ordinary care.
    (Case No. 10024
    Decided March 19, 1907.)

      Error to the Circuit Court of Franklin County.
    Plaintiff brought suit in the court of common pleas to recover from the railway company damages for personal injuries sustained by him in a collision between his wagon upon which he was riding and a train of the railway company at a grade crossing in the Village of Rendville in Perry county, the collision resulting, according to the allegations of his petition, solely from- the negligence of the. company while he was in the exercise of. due care. The specific charges of negligence against the company were the construction and maintenance by it of a building so situated with respect to its road and the highway on which he was approaching the crossing that it interrupted, and, in connection with other buildings, prevented a view of the approaching train; that the train came upon the crossing at a high and dangerous rate of speed; that those operating it kept no lookout for persons about to cross the track; that warnings were not given and that no whistle was blown or bell rung, and that the train might have been stopped without injury to him after his peril would, with ordinary care, have been discovered. It is alleged that all this was done with the company’s knowledge of the character of the crossing. In its answer the company denied the allegations of the petition respecting .its negligence, and ah leged that the injuries which the plaintiff sustained were due to his own negligence.
    On the trial evidence was offered in support of the allegations of both petition and answer. Thereupon, after argument, the trial judge instructed the jury with respect to the law of the case, giving, among- others, the following" instruction: “If the crossing where, the collision occurred was rendered dangerous and the view of the railroad track .was obstructed so that travelers on the public highway could not see the railroad track in the direction from which the train was approach - ing because of the tool house or blacksmith shop kept and permitted to stand so near defendant’s track, then, the company must use such care and take such precautions to warn travelers on the public highway that notwithstanding such obstructions they by the use of ordinary care can avoid injury.”
    A verdict was rendered for the plaintiff, and the company - filed a motion for a new trial upon a number of grounds. The motion was overruled and a judgment rendered for the plaintiff for the amount of the verdict. The company thereupon ■ filed a petition in error in the circuit court for the reversal of said judgment, ten grounds being assigned, one of them being that the trial judge erred in the instructions given to the jury. In the circuit court the judgment was reversed for error, as' appears from its record, in giving the above quoted instruction, the journal containing no express ruling upon any of the remaining assignments of error. A petition in error is filed here for a reversal of the judgment of the circuit court, and with his petition the plaintiff files a printed record containing «0 much of the original record as relates to the propriety of the instruction stated as the ground of reversal.

      • Mr. L. G. Addison and Mr. J. L. Hampton, for plaintiff in error.
    The authorities are clear upon the proposition that the party, causing an obstruction to a crossing must be responsible for the consequences of that obstruction. To hold otherwise would be to place a premium upon negligence and to induce criminal carelessness. Wood on Railroads, Volume 2, page 1528; Thompson on Negligence, Volume 2, section 1509.
    This proposition of law is. supported by a long line of well considered cases, and, as stated by Judge Thompson, was followed so perfectly by. the trial court in the case at bar that there is absolutely no distinction between the language used.
    The charge of the court, as we contend, is a full, able and correct instruction to the jury upon the issues made by the pleadings and the evidence adduced by . the parties.
    There is such a deadly parallel between the language used by the trial court in the case at bar and that used by Wood on Railroads and Judge Thompson in his work on Negligence, and many other authorities which we shall hereafter cite, that it would hardly seem necessary to consume further time and space in this brief than to call attention to these elementary standard authorities, especially in view of the great learning and ability of Judge Thompson. Inasmuch, however, as this is the only question in the case, and the reversal of the circuit court upon this point will terminate this tedious and laborious litigation, we desire to go more fully into the authorities, and we shall cite these authorities without taking time or space to comment upon them. Railway Co. v. Hines et al., Admrs., 56 Kan., 758; Ortolano et al. v. Railroad Co., 109 La., 902; Railroad Co. v. Witherspoon, 112 Tenn., 128.
    These statements of the law, which are supported by the adjudicated cases in almost every state, show how clearly erroneous the circuit court was in its decision.. The reason they gave for reversing the common pleas court was, that it, the circuit court, believed that some one might infer from the charge of the common pleas court that more than the statutory requirements might be imposed on the company. We do not see how any one could so interpret the charge of the court. All the court said to the jury was that, in view of the fact that this crossing was obstructed, if they so found it, it then .became- the duty of the railroad company to -so operate its trains that notwithstanding such obstructions persons upon the highway by the use of ordinary care could avoid injury, and the court in the paragraph just preceding it told the jury, in terms as strong as language could make it, that there was an equal duty imposed upon the plaintiff to use care and all the knowledge which he had of the conditions of this crossing, but the circuit court held that it required something more than statutory requirements and was therefore erroneous. We insist that no such construction can be tortured from this charge. Even if it could, the charge would be strictly within the decisions cited above. . In other words, the railroad company may by its own acts and conduct impose an additional duty upon itself which has not been imposed by the legislature. The Supreme Court of Ohio makes this point clear in,
      Railway Co. v. Schneider, 45 Ohio St., 678; Railroad Co. v. Matthews, 36 N. J. L., 531; Gugenheim, Admr., v. Railway Co., 66 Mich., 150.
    The.Supreme Court of the United States recognizes the same doctrine and states the law as it was charged by the trial court in the case at bar, and it. seems to us that the trial court is entirely right in following such a learned court. Railway Co. v. Ives, 144 U. S., 408; Railroad Co. v. Shelton, 55 N. J. L., 342; Railway Co. v. Randel, 47 N. J. L., 144.
    These authorities, and many more which may be cited to the same effect, show to a demonstration that the charge of the trial court was correct and was good law.
    As stated by the Supreme Court of the United States, the authorities are so universal upon this' proposition that we shall not áttempt to call attention to all of them, but wish in' conclusion to cite a few additional cases and text books upon this subject.
    The crossing in question was a dangerous one, rendered, so by the act of the railroad company itself in maintaining a tool shop in such a position as to obscure the view of travelers upon the highway; .the crossing was much used; the court charged the jury that the railroad compan)' as well as the travelers upon the highway was bound to use ordinary care with reference to that crossing; and no respectable authority can be found which lays down a contrary doctrine. Elliott on Railroads, Volume 3, page 1762, section 1161, page 1748, section 1156.
    There is no authority for the position taken by the circuit court. All the text-books and adjudicated cases so far as we have examined them state the opposite doctrine. Railway Co. v. Ives, 144 U. S., 408. Railroad Co. v. Price’s Admr., 76 S. W. Rep., 836; Railway Co. v. Baker, Admr., 106 Ill. App., 500 Railway Co. v. Barker, 77 Fed. Rep., 810; Harper v. Barnard, Receiver, 99 Ia., 159; Railroad Co. v. Matthews, 36 N. J. L., 531; Railway Co. v. Warren, 39 S. W. Rep., 652; Manley v. Canal Co., 69 Vt., 101; Funstoh v. Railway Co., 61 Ia., 452.
    We believe the authorities sustain-the proposition that the maintaining of this blacksmith shop, or tool house, so as to obstruct this crossing was itself negligence on the part of the railroad company. Thompson on Negligence, Volume 2, section 1507; Railway Co. v. Michalke, 90 Tex., 276.

      Mr. Thomas E. Powell; Messrs. Stewart & Stewart and Mr. Fred. C. Rector, for defendant in error.
    We claim in the first place, that proceedings in error are allowed and instituted for the purpose of reviewing judgments of lower courts. They are not allowed for the purpose of reviewing the reasons given by the lower courts for their judgments, if upon the whole record the judgment is correct. The plaintiff in error has not printed in this case the bill of exceptions embracing the testimony taken upon the trial. The record shows that seventeen special instructions requested by the railway' company to be given to the jury by the court with its charge were refused, and that the railwa)?- company at the time excepted.
    In other words, the record does not show that there is any merit in the claim- of the plaintiff in error here to have said judgment reversed even if it should appear that the circuit court was not right in giving the above paragraph in its general charge to the jury. In other words, it does not appear but what the judgment of the court of common-pleas should have been reversed on numerous other grounds set out in this petition in error filed in the circuit court. Holt et al. v. Lamb et al., 17 Ohio St., 374.
    An incorrect or insufficient reason for a correct ruling, decision or judgment is not ground for reversal. A reviewing court never looks in the reason given for a judgment below, but does look to see if upon the whole substantial justice has been done or a proper judgment entered. Or, in other words, before a reviewing court will reverse the judgment of an inferior tribunal it must find that prejudice appears upon the record against the complaining party, or* as the Supreme Court of Ohio stated in the case of Harman v. Kelley et al., 14 Ohio, 502, when from the whole record it appeared conclusively that the proper judgment was entered, ^ the proceeding 'will not be reversed on error even if the court mistook the law on some of the propositions discussed during the trial. This proposition of law has been so well settled in this .state that it is not now open for discussion or controversy. It is supported by the following authorities. Lessee of Ludlow’s Heirs v. Park, 4 Ohio, 5; Westerhaven v. Clive, 5 Ohio, 126; Steamboat Waverly v. Clements, 14 Ohio, 28; Laudenback v. Collins, 4 Ohio St., 251; Baird v. Clark, 12 Ohio St., 87; Courtright v. Staggers, 15 Ohio St., 511; Wood, Admr., v. Butler et al., 23 Ohio St., 520; Village of Shelby v. Boenau, 40 Ohio St., 253
    Decisions of this court on this point could be cited at much greater length, but we think the proposition is so well settled that the statement of the proposition is sufficient without further argument or authorities in support of it. Yo-cum, Admr., v. Allen, 58 Ohio St., 288; King & Uhl v. Herb, 9 Cir. Dec,, 797, 18 C. C., 41; Gensen v. Oil Co., 12 Cir. Dec., 10; McArthur Bros. v. Trust Co., 21 C. C., 654.
    In the next place we' claim the court did not err in giving that part of the charge which is relied upon here for reversal. This instruction was equivalent to telling the jury that a duty was imposed upon the defendant to give some warning other than that provided by statute, and that a failure to perform such duty would entitle the plaintiff to recover although such negligence was not charged in the petition. In other words, under this instruction the jury were led to believe that under the circumstances of the case the railway company was required to give signals other than those provided by statute, and a failure to give such signals would justify a recovery on the part of the plaintiff although the plaintiff may have been injured entirely by his own contributory negligence.
    We submit that the trial court had clearly charged the law upon, this subject in other parts of the charge and the giving of this proposition was clearly erroneous' and misleading to the jury.
    Finally we claim that the circuit court was right in finding .that the proposition of daw as given to the jury was erroneous and misleading. In the next place, even if the proposition as given to the jury was correct, still this court can not find that the plaintiff'in error was prejudiced by the judgment of the circuit court, because we insist that if the whole record had been presented to this court it would appear that substantial justice had been done to the plaintiff in error whether the single proposition of law complained of was right or wrong.
   Shaucic, C. J.

It is said that the circuit court was of the opinion that, upon the trial, the court of common pleas had committed errors other than the giving of the instruction quoted in the statement of the case, 'and that it erred in overruling the motion for a new trial upon the grounds therein stated, one of them being that the verdict was contrary to the weight of the evidence, that being a ground upon which this court would not review the judgment. The entry of judgment in the circuit court specifies the instruction quoted as the error found in the record, and states it as the sole basis of its judgment of reversal. The duty of the circuit court in the premises is plainly prescribed by Section 6709, Revised Statutes, which provides that: “All errors assigned in the petition in error shall be passed upon by the court, and in every case where a judgment or order is reversed and remanded for a new trial or hearing, the circuit court shall, in its mandate to the court below, state the error or errors found in the record upon which the judgment is founded.”

It must be presumed that the circuit court is aware of this provision of the statute and of the pertinent construction which this court placed upon it in Kramer v. T. & O. C. R. R. Co., 53 Ohio St., 436. In the performance of its plainly prescribed duty it passed upon all the errors assigned in the petition in error presented to it, and stated the instruction referred to as the only basis of its judgment of reversal. This necessarily implies that it overruled all other assigments of error though such overruling be not expressly stated in the judgment- entry.

It is further urged that not enough of the record is printed to enable us to reverse the judgment of the circuit court though we may think it' erroneous upon the ground stated. The view presented is that if the circuit court properly reversed the judgment of the court of common pleas it can not be material whether it based its judgment on a sufficient ground or not; and that the portion of the record which has been printed will not enable us to determine that the circuit court should not have rendered the same judgment because of other errors assigned there. That we could not, upon this printed record, pass upon all the errors assigned in the circuit court is obvious. But the conclusion suggested does not follow, since the reason which conducts to it is variant from recent legislation and adjudication looking to greater simplicity in proceedings in error, that being in proper recognition of their remedial character. When the statute and the decision referred to are considered in connection with the provisions of Section 6711 of the Revised Statutes that “when a petition in error is filed i-n the Supreme Court so much of the record to be reviewed as will show the error complained of shall be printed” it becomes apparent that a proceeding in error instituted here for the reversal of a judgment of the circuit court meets a prima facie presumption in favor of the regularity of the entire record in the circuit court. When the review is in a case in which that court has reversed a judgment of the court of common pleas the presumption extends not only to the grounds stated by it as the basis of the judgment of reversal, but as well to all the grounds of error assigned there which it has adjudged, whether expressly or by implication, not to be well taken. By whom should that presumption be overcome if not by him who desires that the error be made to appear? In accordance with the view suggested, if the present defendant in error desired to present here in support of the judgment of reversal which it had.recovered in the circuit court an assignmént of error which it believés to have been erroneously overruled by that court, whether the ruling was express or implied, it would have followed correct and established practice by printing and filing here within the time prescribed for filing its brief such further portions of the record as would make that error appear. Since it has not taken that course, and since the printed record which the plaintiff in error has filed presents all of the record that is material to the grounds of reversal stated by the circuit court in the entry of its judgment, the case is before us for decision upon the sufficiency of that ground.

From a consideration of familiar principles of the law of negligence illustrated in numerous cases, some of which are cited in the brief of plaintiff’s counsel, it is apparent that in such circumstances as were alleged in the petition and shown by the plaintiffs evidence the duty of a railroad company operating trains over a highway at grade is not limited to the giving of signals by bell and whistle. These signals are required at grade crossings in the open country, and the, elementary rule that the degree of care to be exercised is determined by the danger to be apprehended should require additional precaution when the crossing is in a denser population and when structures maintained near the track obscure the view of approaching trains. This view of the subject was taken by.'this court in Railway Co. v. Schneider, 45 Ohio St., 678. The rule upon the subject has been correctly stated to be that “where the surroundings are such as to render a crossing particularly dangerous it is the duty of the company to exercise care’ commensurate with the danger and especially if the company has created unusual danger at or near a crossing, it must meet such peril' with additional precautions.” But the difference between the obligation of the company thus stated and that prescribed in the instruction given in the present case is obvious. According to the instruction the company is, in such circumstances, the insurer of the safety of all who attempt to cross its tracks exercising ordinary care. The • obligation of the company “to take such .precautions to warn travelers on the public highway that notwithstanding such obstructions they by the use pf ordinary care can avoid injury,” would leave no place for accidents or such fortuitous happenings as may result from causes which would not be observed by ordinary care exercised by either or both of the parties, and which ordinary prudence would not anticipate.' Such a rule, if recognized and enforced, would make the company liable for injuries resulting from the negligence of others than parties to the ■ suit. Indeed, in such situations it would be an inexpensive and effective substitute for a policy of insurance against accidents.

Judgment affirmed.

Crew, Summers, Spear and Davis, JJ., concur.