author: Spear, J.

text:
    Krause et al. v. Morgan.

      Action for damages — Admission and exclusion of testimony — Rule as to contributory negligence — Assuming voltmtary risk may waive statutory protection — Protection to miners — Sections 298 and 301.

    1. Where, at the trial of an action for damages for alleged wrong-doing of the defendant, a question arises as to whether the petition makes a case- for negligence, which is decided for the plaintiff, and testimony offered by him bearing upon that issue is, against the objection of defendant, admitted, it is not error to admit appropriate testimony offered by defendant bearing on the same question even though, upon a proper construction of the pleadings, the issue is not made.
    2. One who voluntarily assumes a risk, thereby waives the provisions of a statute made for his protection. And where a statute does not otherwise provide, the rule requiring the plaintiff in an action for negligence to. be free from fault contributing to his injury, is the same, whether the action is brought under a statute or at common law.' •
    3. Under sections 298 and 301, of the Revised Statutes, which require the operator of a coal mine to keep the same free from gas, and to have the working places examined every morning with a safety lamp before workmen are allowed to enter, and give a cause of action to a person injured for direct damage occasioned by any violation or wilful failure to comply with the requirements of the statute, an employee cannot maintain an action against his employer for an injury following” such violation, unless at the time he was injured he was in the exercise of due care.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Stark county.
    Action was brought against E. G. Krause and others, partners (plaintiffs in error), by David L. Morgan (defendant in error), to recover for injuries received by reason of alleged negligence of Krause & Co., and for a violation of statutory duty, by reason of which Morgan, a coal miner, was injured by an explosion of fire damp in a coal mine at the time being operated by Krause & Co. At the trial a verdict was rendered for the defend ants, which was reversed by the circuit court, and to reverse this judgment this proceeding is brought. Additional facts are stated in the opinion.

      Day, Lynch & Day, for plaintiffs in error.
    That an employee takes upon himself the risks and dangers of an employment where he knows the master is conducting it in a dangerous way, if he remains in the employ without objection, is well settled in Ohio. Railroad Co. v. Knittal, 33 Ohio St., 468; Mad River R. R. v. Barber, 5 Ohio St., 541; Coal and Car Co. v. Norman, 49 Ohio St., 598; Railway. Co., v. Leech, 41 Ohio St., 388.
    The statute we contend, was not intended to permit a man, who knew of the condition of the mine, who had knowledge that gas existed in dangerous quantities in his room, or might be expected to be found there, to then voluntarily expose himself to such danger, and recover because of noncompliance with the statute. The great weight of the testimony in this case, showed that he went into this mine in the face of knowledge and repeated warnings. The statute was intended for the protection of the cautious and careful, at least a man should not shut his eyes, as in this ease, to well known facts, and close his ears to repeated warnings, and then recover because there was a statute. Spiva v. The Osage Coal and Mining Co., 88 Miss., 68; Taylor v. Crew Mfg. Co., 143 Mass., 470; White v. Winter, 131 N. Y., 631; Hollum, Admr., v. Railway Co., 80 Wis., 299;
      Brant, Admx., v. Railroad Co., 83 Mich., 564; Buswell on Law of Personal Injuries, section 230; Reynolds v. Hindman, 32 Ia., 146; Railway v. Ward, 61 Ill., 130; Coal Co. v. Cooper, 12 Brad., 373; Coal and Mining Co. v. Admr. of Clay, 51 Ohio St., 542.

      Webber c§ Tu/rner, for defendant in error.
    The action is founded upon the violation, by plaintiffs in error, of a duty imposed by statute, and is to be distinguished from a case of mere common law negligence. The question whether the coal mine of plaintiffs in error had been operated in violation of the requirements of the statute, at the time of the explosion of gas, and the injury of defendant in error, was directly in issue. Hubbard v. Concord, 35 N. H., 52; Hayes v. Waldron, 44 N. H., 580; Timm v. Bear, 29 Wis., 256; Perkins v. City of Fond-du-Lac, 34 Wis., 436.
    Kline was the mine boss. It was because of his failure to perform the duties imposed upon him by section 2y8, Revised Statutes, and the injuries resulting to defendant in error in consequence thereof, that this action was brought. Had the defendant in error been permitted to give in evidence this declaration of Kline, the mine boss, the whole force of his evidence would have been overthrown.
    We contend that, either, in contradiction of his testimony or as an admission against the company, his declarations were unquestionably admissible. This testimony was not collateral, and the court erred in excluding the evidence of this witness. Kent v. The State, 42 Ohio St., 426; Martin et al. v. Elden, 32 Ohio St., 282; Dilcher v. The State, 39 Ohio St., 130; Findlay Brewing Co. v. Bauer, 30 Bull., 298; Brigham v. Clark et al., 100 Mass., 430; Hook v. George, 108 Mass., 324; Commonwealth v. Bean, 11 Mass., 438; Quinn v. Railroad Co., 56 Conn., 44.
    It was Morgan’s right' to have his conduct judged in the light of the prohable conduct of ordinarily cautious and prudent men, acting under like circumstances with like knowledge; and the question of his negligence was one to be determined by the jury from all the peculiar, circumstances surrounding the case. Sherman & Red-field on Neg., section 211; 4 Am & Eng. Ency. of Law, 221; Beach on Con. Neg., section 455; Perkins v. City of Fond-du-Lac, 34 Wis., 439; Beach on Con. Neg., 1 ed., section, 22; Am. & Eng. Ency. of Law, volume 16, page 393, and numerous cases cited; 2 Beach on Con. Neg., sections 52, 63, 64; Am. & Eng. Ency. of Law, volume 4, page 80; Catlett v. Young, 32 N. E. Rep., 447; Mining Co. v. Roach, 68 Ill., 174; Coal Co. v. Taylor, 81 Ill., 590; 78 Am. Dec., 323; Durant v. Mining Co., 97 Mo.
    The doctrine that contributory negligence can. not be pleaded as a defense to a wilful injury has been repeatedly recognized in this state. Railroad Co. v. Waterson et al., 4: Ohio St., 425 ; Railway Co. v. Smith, 26 Ohio St., 124; Barholt. v. Wright, 45 Ohio St., 182; Railroad Co. v. Kassen, 49 Ohio St., 238.
   Spear, J.

The circuit court found and held that the common pleas erred in the admission of evidence, in the exclusion of testimony, and in the charge to the jury.

1. The admission of evidence. As construed by the trial court, the petition made a case against the defendants below on the ground qf negligence simply, and on the further ground that the defendants had violated certain clauses of section 298 of the Revised Statutes. This section; among other things, makes it the duty of the operator of a coal mine to keep the same free from standing gas, and requires that every working place shall be carefully examined every morning with a safety lamp by a competent person before any of the workmen are allowed to enter the mine, and, by section 301 following-, a cause of action is given to a person injured for any direct damag-e occasioned by any violation of the act or wilful failure to comply with its provisions by the owner or manager of the mine. The defense was a denial of negligence and omission of duty, and that the injury occurred by reason of the wilful negligence of plaintiff after being warned not to enter the part of the mine where the explosion occurred. Plaintiff, by reply, denied the warning and the negligence.

Under the-construction given the petition, the plaintiff was permitted, against the objection of defendants, to introduce testimony tending to show what would be proper practice in operating mines in that vicinity independent of the statute. To rebut this, the defendants, against objection of plaintiff, were permitted to. offer proof showing- the ordinary and general practice in mines in the vicinity in the respects referred to. We need not take the trouble to determine whether or not the liberal construction given the pleading by the trial court was correct. ' Clearly, it would have been proper practice to embrace both charges in the petition, and, inasmuch as the plaintiff sought to try his case upon that theory, and could, if necessary, have amended the pleading to meet the facts, he ought not to be heard to object to testimony in contradiction of the case he had thus voluntarily made. We think the testimony offered by the defendants was competent.

2. Exclusion of testimony. In the course of the trial the defendants called as a witness, one Kline, the mine boss, who testified generally for the defendants, and, among other things, stated that he had ordered a safety lamp when he first learned of the existence of gas in the mines, which was three or four weeks before Morgan was burned; that it had not come at the time Morgan was hurt, but did come later on the same day; that when he discovered gas in an entry where the ventilation would not carry it out, he brushed it out with his coat and then went in himself with a naked lamp to make sure no one would be burned. In cross examination Kline was asked if he did not say to one Ely, in Powell & Jones’ saloon, in Massillon, two or three days after the accident, “the company is blaming me for the accident; I don’t see why I am to blame; I requested a safety lamp from the company several'weeks back, and it didn’t come, and I consider my life worth as much as any other man’s.” The witness denied having made the declaration. Plaintiff then offered to prove by Ely that the declaration was made, but the court, on objection by the defendants, refused to admit the testimony, and this the circuit court held to be error.

We think it was not error to exclude the alleged statement to Ely. The matter was collateral. Besides, that part of the statement which relates to the failure to furnish a safety lamp had already been given in chief, and Morgan saw and understood the process of brushing out the gas; that ■which was mere complaint could, not be taken as an admission against the defendants, for Kline was not shown to have authority to make statements binding upon his employers after the accident.

3. Charge of the court. The plaintiff’s evidence showed that he was an experienced miner, having-worked at the business for thirty-three years, five years of which he was in the employ of the defendants, and in the mine (No. 2) where.the accident occurred, about two months at the time he was .hurt. Fire damp is,volatile, gathers in the top. of the room or entry, is liable to be carried about by currents, and is highly explosive .and dangerous when brought in contact with, open flame, all of which was known to plaintiff. He -knew, also, of the presence of.- gas in the entry next to where he was working some three to five weeks before the accident, and saw the mine boss at least twice in the act of brushing it out with his coat toward the break-through, so that the current of air could get hold of it and carry it away.. One of,,the workmen had a safety lamp which, had been used somewhat by the mine boss in discovering1 gas, but the defendants had not procured a safety lamp to be used in the mine, and these facts, were known to Morgan., He made no objection, but continued at his work as before,.going into his room without waiting for an examination with a safety lamp to see whether there was gas there or not. . No direction of any kind was given to. him that morning about going in.

.Plaintiff’s evidence tended to show .further that on the morning of February 17, 1891, he, with others, went down the shaft to work, about seven o’clock; that he did not see the mine boss that morning; tliat no direction or warning had been given him not to go into the ■ room where he had been engaged, and that, having no notice or suspicion of danger, in the ordinary course, and without warning or fault, he went with an open lamp lighted, and just as he got into the room an explosion of gas occurred which caused the injury. He did not know whether there was gas there or not before going, but if he had known of its presence he would not have gone in.

Defendant’s evidence tended to show that the day before the accident complained of there was a slight explosion of gas in the room in which Morgan was working, which singed his whiskers; that at the close of the day’s work he told the mine boss of it and that it had singed his whiskers a bit, which the mine boss saw was the fact; that the boss then said to him not to go into the room the next day until he, the boss, had been in first and brushed out the gas ; that the boss also said to the other men, in Morgan’s presence, to stay out until he had investigated; that plaintiff was cautioned a day or two before by fellow workmen concerning the danger from gas in that part of the mine, and, on the morning of the accident, as he was going to work, to stay out of his room or he would get burned, to which he replied that he knew gas— had worked fifteen or sixteen years in it; that in spite of repeated warnings, and with knowledge that the room had not been examined for gas that morning, and without direction to go, but against orders not to go, he went in with his lighted lamp, and the explosion at once followed.

As applicable to the issues made in the pleadings, and upon the facts and evidence, the court among other things, charged the jury that:

£ ‘If an employe of experience in the mining business, such as the plaintiff is admitted to be, continues to labor in a dangerons and hazardous business where there is negligence on the part of the employer, or failure to use ordinary care and prudence for the protection of the miners, to the knowledge of such employe, and without communicating such knowledge to the master, he continues to so labor in such dangerous and hazardous business ; he takes upon himself the risk of such business, and of such' negligent act or omission, and cannot recover if he is injured thereby.

“If the plaintiff in this ease knew some time before his injury, that there was fire damp generated in this mine, in or near the place where he wTas working, and that the defendant was not causing the mine to be examined every morning with a safety lamp, but was undertaking to remove the gas by other methods, and that the plaintiff made no complaint of this method, but voluntarily continued in the service of the defendant, he could not recover in this action. In such case, he would have waived compliance with the statutory requirements, and would continue in the employment with ■ full knowledge that the same was not being complied with.

“If both plaintiff and defendant knew that fire damp was being generated in this mine, and in the part of the mine in which plaintiff was working, and it was in fact in said room where he was working, and the plaintiff was warned not to go into that part of the mine until the same had been first examined for fire damp, yet he voluntarily went into said room without any previous examination, and knowing that the same had not been made, he could not recover in this action. For, in such ease, where knowledge exists of the fire damp, there is no necessity for examination with a safety lamp, with a view to discovering the same, for the presence of the gas being known to the plaintiff, he could not go where it was, and thus voluntarily expose himself to its dangers, and then hold the master liable therefor. ” Which'instructions the circuit court held to be erroneous.

As before stated, the construction given the petition at the instance of the plaintiff, embraced two charges, one of simple common law negligence, and the other of violation of a statutory requirement. The first paragraph quoted above related to the first named phase of the case, and limited the application of the principle to an injury occasioned by such negligence. The instruction, it seems to us, is a correct statement of the general rule as laid down by text writers and a large number of decided eases. Shearman and Redfield on Neg., section 208; Railroad v. Barber, 5 Ohio St., 541; Railroad v. Knittal, 33 Ohio St., 468; Railway v. Leech, 41 Ohio St., 388; Coal & Car Co. v. Norman, 49 Ohio St., 598.

The other two paragraphs present the question whether the intent of the statute, sections 298 and 301, is to give a workman injured by an explosion of gas, a right of action against his employer, who has failed to comply with the requirement in regard to keeping the mine free from gas, and requiring the use of a safety lamp to discover gas before any workman is permitted to enter the mine, where it appears that both parties knew of the existence of the danger, and the workman, although warned not to go where it was until an examination had first been made, voluntarily went into the danger ; or, where the workman, having full knowledge of the volatile nature and explosive qualitjr of gas, and also knowledge some time before of the presence of gas in or near the place he was working, and knowledge that the place was not being examined as required by statute, and yet made no complaint, but voluntarily continued in the service and incurred the danger.

It is insisted that, giving effect to the statute, the conduct of the defendants was a wilful violation of its terms, and where the injury inflicted is wilful, negligence is not involved, and hence the question of contributory negligence as a defense, cannot arise. This proposition, as a general statement, is found in a number of text books. But, in order to avoid a misapplication of the rule, it will be well to inquire as to the facts involved in the class of cases from which the rule has arisen. An examination will, we think, show that in those cases, the negligence of the injured party preceded that of the defendant, and that the principle controlling the cases was that the guilty party could not be heard to justify his wilful act in the infliction of injury upon another by the fact that the other had, before the act of the defendant which inflicted the injury, been guilty of negligence. The general principle is stated by Judg’e Cooley, in his work on Torts, at page 810, in these words: “Where the conduct of the defendant is wanton and. wilful, or where it indicates that degree of indifference to the rights of others, which may justly be characterized as recklessness, the doctrine of contributory negligence has no place whatever, and the defendant is responsible for the injury he inflicts, irrespective of the fault which placed the plaintiff in the way of such injury: The fact that he has carelessly put himself in a place of danger is never an excuse for another purposely or recklessly injuring him. ”

It is, perhaps, stated more pointedly by Mr. Beach in his work on Contributory Negligence, section 64, thus: “In order to constitute contribittonj negligence on the part of the plaintiff, there must be 'negligence on the part of the defendant. It is accordingly the well settled rule that when the defendant’s conduct amounts to wilfulness, and when the mischief is occasioned by his intentional and wanton wrong doing, the plaintiff’s negligence is no defense.” The author refers to a large number of cases as support for the text, in all of which the negligence of the injured party was, in point of time, first, and hence was not the proximate, but only the remote, cause; indeed, it was, strictly speaking, not the cause at ail, but rather the condition on which the cause acted. And the text itself shows that the author had in mind mischief occasioned by the defendant’s wrong doing', not the plaintiffs. The case of Davis v. Mann, 10 Mee. & W., 545, is a sample of many, and illustrates the principle. The owner of a donkey had fettered him and left him in the public road. The defendant negligently drove his horse at a rapid pace and ran over the donkey, killing him. It was held that although the animal was wrongfully placed in the road, yet that did not justify the act of the defendant, and that he was liable. His act was reckless, and in law, wilful. Railroad Co. v. Kassen, 49 Ohio St., 230, is based on a like principle, and the books are full of such cases.

Statutes of other states in many respects similar to our own have been given construction by the courts which seem not to be uniform. Spiva v. Osage Co., 88 Mo., 68, was a suit to recover on account of death caused by an injury received by a workman in falling down the shaft at the company’s coal mine. Spiva was at the time at work at the top of the shaft dumping coal. The Missouri statute provides that the top of each shaft shall be securely fenced by gates properly covering and protecting- such shaft, and gives a right of action to persons injured in language substantially like that of section 301 of the Ohio statute. No gates had been placed at the shaft, which was fully known to Spiva, who had worked there about sixteen months. Had the gates been there, the accident, in all probability, would not have occurred, and yet the immediate cause was, apparently, Spiva’s own negligence. In the opinion this language is used: “The duties imposed by the statute were for the health and safety of those engaged in mining labor and occupation, and entitled to its benefits, but it is not the intention of the act, or policjr of the law, to exempt any from the direct and immediate consequence of his own carelessness.” The holding of the court is that “one who voluntarily assumes a risk, thereby waives the provisions of a statute made for his protection,” and that “the act does not exempt any one so employed from the direct and immediate consequences of his own carelessness.” Durant v. Lexington Co., 97 Mo., 62, was based upon the same statute, but for a violation of the clause which required the company to cover with boiler iron its cages in which coal was hoisted. Durant was en-g*ag’ed in putting’ a pit ear on the cage at the bottom of the shaft, and was injured by a large lump of coal which fell from the car which had reached the top of the shaft. Had the cage been covered he would not have been injured. The court held that mere knowledge on his part of the failure of the defendant to have the mine provided with the protection required by law would not defeat the action. At first blush this might seem inconsistent with the holding in the Spiva ease, but it probably is not, inasmuch as Durant might rightfully assume that, although the statutory provisions for safety had not been provided, yet the company, in view of that fact, would exercise such care, by regulations as to the filling of the cages, or otherwise, as would prevent the falling of the coal. Durant did not himself contribute to the act which caused the injury. The court say in the opinion: “But we do not say in this case that plaintiff could recover if guilty of negligence himself.”

The Illinois mining statute is understood to give a cause of action in language similar to that of our ' section 301. In The Bartlett Co. v. Roach, 68 Ill., 174, suit was brought to recover for damages arising in much the same way as in the Spiva case. The holding against the company involves the condition that the employe, at the time of the accident was using due care. Litchfield Co. v. Taylor, 81 Ill., 590, was much like the Durant case, the main difference being that Taylor was riding up in the uncovered cage when the coal, falling from above, struck him. The holding, in support of the judgment against the company is, that “a recovery may be had notwithstanding the deceased may not have been free from fault and negligence on his part.” It will be noted that in these cases no act of the injured person caused the coal to fall. He had no agency in that, even remote. Nor does the record in the Taylor case show negligence on his part; indeed, the finding of the jury, under the charge given, implies that he was not negligent, and the court in the opinion say: “Nor does the evidence justify the theory that the misconduct of the deceased materially contributed to the injury.”

The statute of Iowa requires that, any person running a threshing machine shall cause the tumbling rods next to the machine, together with the knuckles and joints and jack, to be safely boxed or secured while running, and that all persons who run any such machines without complying witli those requirements, shall be liable to any person damaged by reason of such neglect. In Reynolds v. Hindman, 32 Iowa, 146, the court held that the statute was not intended to change the general rule that a plaintiff cannot recover for injuries resulting from the alleged negligence of the defendant, if his own negligence iza any way contributed directly to the injury.

A statute of Massachusetts relating to elevators, provides that “the openings of all hoistways, hatchways, elevators, azad wellholes, upoza every floor of a factory, shall be protected’’ iza a manner specified, azad that azay “owner of a factory shall be liable for all damages suffered by any employe” by reason of a violatioza of any provision. In Taylor v. Carew Co., 143 Mass., 470, brought under this act, it was held that “aza employe canzaot inaizataiza aza action agaizast his employer for aza izajury caused by szzch violatioza, uzaless at the tizne he was iza the exercise of due care.” The law of Massachusetts is held to be that where a statute does not otherwise provide, the rule requiring the plaintiff in an actioza for negligence, to show that at the time' of the iza jury complained of he was in the exercise of due care, is the same whether the actioza is brought zander a statute or at common law. For construction of a statute providing otherwise, see Commonwealth v. Railroad, 134 Mass., 211.

A statute of Michigan provides that all operators of railroads are required to so adjust, fill, or block the frogs, switches and guard-rails on their roads in all yards as to prevent the feet of persons from being caught therein; and any company which fails to comply with the provisions shall be liable to a fine of not less than a hundred or more than one thousand dollars, and neglect to comply shall be deemed a violation. In Grand v. Railroad Co. 83 Mich., 564, it is held that a person injured by being caught in a frog not blocked as required by this statute, cannot recover where he is himself guilty of negligence.

In Holum v. Railway Co., 80 Wis., 299, it is held that the statute ‘ ‘requiring every railroad company to erect and maintain guards at every frog, and providing that the company shall be liable for all damages sustained by reason of its failure to do so,” “does not take away the defense of contributory negligence. ”

The law of negligence is based upon the necessity of a policy which, in the affairs of life, will induce caution, and when it is asked that a particular construction be given a statute enacted for the purpose of protecting life and limb, we are bound to inquire whether such construction will encourage of discourage carefulness. If the latter, it should not be adopted unless the languagé of the act is so clear as to practically leave no room for construction. The text of the act in question furnishes no encouragement to the idea that one who is at fault himself which contributes directly to, and is the proximate cause of, the accident, may yet recover because of the previous failure of the operator of the mine to comply with the statute. Indeed, language found in a penal act on the same subject (section 6871), negatives such conclusion. ‘ ‘Whoever knowingly violates any of the provisions of sections 297, 298,” etc., it is there provided, ‘ ‘or who shall enter any part of the mines against caution, ” etc., shall be fined, or imprisoned, or both. It cannot, we think, have been the intention of the legislature by this act to abrogate established common law principles for the purpose of giving a right of action to one who knowingly incurs a danger made possible by previous fault of his employer which, by ordinary can’e in observing caution, he could have avoided, such injury being incurred while the person is violating the inhibition of the very statute upon which he bases his action.

As said by Mr. Thompson, in his work on Negligence, section 1005, “the legislature will not be held to intend a repeal of the settled rules of the common law, unless the language employed by it clearty imports such an intention. ” Carle v. Railroad Co., 43 Me., 269; Sullivan v. Railroad Co., 11 Iowa, 421.

And we think it still wise to adhere to the old rule that where the injured party knowingly and deliberately assumes the risk that leads him into immediate danger, he ought not to have a remedjr for injuries brought on by his own act and arising from perils that are obvious and certain. A safe, and, it seems to us, a humane policjq looking to the prevention of accidents, is to require that all persons engaged in hazardous undertakings shall act up to the standard of due care set by the law.

Does it, therefore, follow that- sections 298 and 301 can have no beneficial effect? By no means. While the statute, as we construe it, does not make the operator of the mine absolutely liable to a party-injured by an explosion of gas where the operator has not complied with the statute, such conduct is negligence per se, and the employer cannot escape liability by showing that he took other means to protect the workmen equally efficacious. Proof of failure to obey the statute is all that is necessary to establish negligence on the part of the operator, but the statute does not change the well established rule that where one has been guilty of negligence which may result in injury to others, still the others are bound to exercise ordinary care to avoid injury.

Other exceptions do the record of the common pleas were argued in the circuit court,- but we do not regard any of them as sufficient to require a reversal of the common pleas judgment.

Ihe judgment of the circuit court will be reversed, and the judgment of the common pleas affirmed.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Coal Company v. Estievenard.

      Coal mine owner — Duty and liability of — Rights and negligence of miner — When knowledge prevents. recovery — How jury should be charged.

    1. It is the duty of the owner, agent, or operator of a coal mine to keep a supply of timber constantly on hand, and to deliver the same to the working place of the miner, and a failure so to do is negligence on his part, and if an injury is proximately caused thereby, an action will lie to recover damages therefor.

      2. A sufficient supply of timber having been delivered to the working place of a miner, it is his dutj- to securely prop the roof of such working place, and if he fails to do so, and thereby sustains injury, be is guilty of such negligence as will prevent a recovery therefor.
    3. if a miner props the roof of his working place until he regards it safe, and then enters, or remains therein, and is injured by stones or other materials falling from such roof, in consequence of his mistake in judgment as to its safety, he cannot sustain an action for such injury.
    4. One who enters or remains in the room of a coal mine, knowing the roof thereof to be unsafe, or having the means at hand of knowing the unsafety of such roof, is guilty of such negligence as will prevent a recovery for any injury he may sustain by the falling of such roof.
    5. If one party has been negligent, and the other party has knowledge thereof, or is chargeable with such knowledge, he must thereafter act with reference to such negligence, and cannot shut his eyes and claim that he relied upon a proper performance of duty by the other party.
    6. The charge of the court to the jury should not be as to abstract propositions of law, but should be confined to the law applicable to the facts of the case which the evidence tends to establish, and the attention of the jury should be called to the controlling point or points of the case, so that the verdict maj' not be founded upon unimportant matters.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Belmont county.
    The plaintiff below, Gustave Estievenard, avers in his petition that he was working in the employ of the Coal company, defendant below, digging coal in its mine, by its command and direction, in room number one, and while so working near quitting time in the evening- of August 29, 1892, a large mass of soap stone fell upon him from the roof of said room, that the fall of said stone was caused by the dangerous and insecure condition of the roof of said room at said point, by reason of its having gradually separated and broken away from the mass above it, and all of which was caused by the carelessness and negligence of the said defendants in failing to furnish timber and props to properly sustain and secure said roof.
    The plaintiff says he was ignorant of the dangerous condition of said roof, and the condition of said stone, and was without fault or negligence on his part in the premises; and by the falling’ of said stone his left foot and ankle and the bones thereof were mashed and crushed, and both bones of the left leg broken above the ankle joint.
    The plaintiff further avers that he suffered great pain and was permanently injured, and prays damages.
    The answer of the defendant below is as follows: “The defendant admits for the purposes of this suit that it is a partnership as stated in the petition, and that it holds property in the county of Belmont; and admits that it is the owner of a coal mine, as stated in the petition, and that the plaintiff, on the 29th day of August, 1892, was working in the employ of the defendant, and that while so employed he received some injury from the falling of a stone upon him from the roof of the room in which he was working.
    ‘ ‘ And, except as hereinbefore admitted and qualified, defendant denies each and every allegation in the petition contained. ”
    The ease was tried to a jury, a verdict returned in favor of plaintiff below, a motion filed for a new trial on the ground, among others, that the court erred in its charge to the jury, and in reusing to charge as requested by the defendant below. This motion was overruled and judgment entered on the verdict, to all of which defendant below excepted. The circuit court affirmed the judgment of the common pleas. Thereupon a petition in error was filed in this court to reverse both judgments below. 7

      N. K. Kennon, for plaintiff in error.
    The plaintiff well recognizes in his petition that in order to make a case on paper he must at least allege he was ignorant of the dangerous condition of the roof; but, in his own testimony and by his brother’s evidence he establishes that he knew the roof was dangerous. The plaintiff neither alleges nor proves that he communicated this knowledge to the defendant, nor that the defendant knew the dangerous condition of the roof. Coal Company v. Norman, 49 Ohio St., 598; Coal Company v. Admr. of Clay, 51 Ohio St., 542.
    Suppose it was the duty of the defendant to furnish .props to plaintiff’s room, and the props were not so furnished ? Having knowledge of the danger, he could have avoided it without violating any duty, or even discommoding himself. The coal driver was the co-employee of plaintiff. Paul v. Johnston, E. H. & C., 589; Troughear v Coal Co., 62 Ia., 576; Waddell v. Simonson, 112 Pa. St., 567; Reese v. Biddle, 112 Pa. St., 71; Starne v. Schlothane, 21 Ill. App., 97; Buckley v. Mining Co., 14 Fed Rep., 833.
    The defendant’s failure to perform a duty enjoined by statute, or otherwise, will not entitle plaintiff to recover, if he by his own negligence contributes to his injury. Railway Co. v. Elliott, 28 Ohio St., 340.
    The doctrine of comparative negligence has not existence in this state. Negligence is the issue, and the case must be one of unmixed negligence. In a case where the appliances are furnished and cared for by the master, the servant is called on to establish three propositions-: 1. That the appliance was defective. 2. That the master had notice thereof, or knowledge, or ought to have had. 3. That the servant did not know of the defect and had not equal means of knowing with the master.
    We insist that the charge, as a whole, is mi-sieading, while some of the general propositions therein are good law; yet, while they are good as general rules, they are misleading .and incorrect when applied to the facts in this case. Instructions should have special reference to the issues made by the pleadings and the evidence, so as to secure the opinion of the jury on the point at issue. Railroad Co. v. Whitacre, 35 Ohio St., 633; Railway Co. v. Krouse, 30 Ohio St., 234.

      J. IF. Shannon and C. L. Weems, for defendant in error.
    The suit is for the negligent failure of the company to furnish these props, the claim being that the delay in furnishing them was the proximate cause of the injury.
    This is not a case of violating the common law duty to furnish the servant with safe appliances and a safe place to work, such as Coal Co. v. Norman, 49 Ohio St.. 598, but is a violation of an express and unconditional statutory duty to furnish timber — to keep a supply constantly on hand and deliver the same to the working place of the miner. The duty of the company is not conditioned upon notice that props are needed, but is absolute. It must at its peril see that they are on hand constantly.
    The admission of evidence as to notice to and demand upon the drivers for props is objected to. Such evidence is immaterial and not prejudicial, for the reason that the statutory duty to furnish props is absolute and not dependent upon notice. But even if this were not so the evidence shows that the drivers were those servants of the company, charged by it with the work and duty of receiving such notice and supplying1 the props. Sherman & Redfield on ,Neg., 4th ed., section 206.
   Burket, J.

This action is brought under the latter part, of section 6871, Revised Statutes, which reads as follows: “The owner, agent, or operator of every coal mine shall keep a supply of timber constantly on hand, and shall deliver the same to the working place of the miner, and no miner shall be held responsible for accidents which may occur in mines where the provisions of this section have not been complied with by the owner, agent, or operator thereof. ’ ’

By another part of the same section it is made the duty of the miner, “to securely prop the roof of any working place under his control,” under a penalty of fifty dollars fine or thirty days in jail, or both, if he intentionally and wilfully neglects or refuses to perform such duty.

Under this section of the statute it is the duty of the owner, agent, or operator to keep a supply of timber constantly on hand, and to deliver the same to the working place of the miner; and it is the duty of the miner to securely prop the roof of any working place under his control. The duty of each party is clearly defined by the statute, and for a neglect of such duty by either, resulting in an injury to the person or property of the other, an action will lie.

The statute makes it the duty of the owner, agent, or operator to have the timber constantly on hand, and to deliver it to the working place of the miner; and hence the miner is not concerned as to the manner in which .the delivery is made: All he has to prove to make his case, as to that point, is that in fact the delivery was not made. He is not required to ask for the timber, or give any notice. It is his right to have the timber • delivered at his working place at all times without request on his part, and without-notice to any one; and a failure on the part- of the owner, ag-ent, or operator to so deliver timber to the working place of the miner, is negligence, and if. injury is thereby proximately caused to the miner, an action will-lie therefor. Of course only such quantity of timber need be delivered, from time to time, as the miner may in fact need to securely prop the roof of his room. ■

While the charge of the court, as to the. negligence of-the defendant below, is much more lengthy than necessary, and embraces considerations not within the statute, it is, except as to one particular, more favorable to plaintiff in error than the statute warrants, and therefore the company cannot complain.

Upon the question of contributory negligence, the court charged the jury as follows:

“If the plaintiff was negligent, which contributed to his own injury, even in the slightest degree, then in-that case, he cannot recover in this action, although, you may find that the defendant was negligent, and that its negligence was the proximate cause of the injur}?- of the plaintiff. The law requires the plaintiff to use all ordinary care to avoid any injury to himself; that is, such care as an ordinarily prudent and careful man would have used under like or similar circumstances. You are to measure the care that he did use, as you shall find it from the testimony, by the standard that I have given you in charge — that is, the care that an ordinarily prudent and careful man would have used under like circumstances. In determining this question, gentlemen, you are to look to all the evidence; look to the knowledge that the plaintiff had of this particular mine; look to the knowledge that he had of the character of this roof; of what it was composed, its liability to slips, or the liability of the stone to fall. Look to that, and also look to the knowledge — as you may find it from the evidence — that he may have had as to the condition of this roof on Friday, when he left the mine. Also, look to the evidence in determining what he knew of its condition on Monday, at the time he set up these posts, in determining whether an ordinarily prudent and careful man would have gone under this stone at the time of the happening 'of this accident. It is claimed by plaintiff that he was injured some little time after these posts had been set'; that he went under this particular stone that fell, and between these posts, to get a sledge, preparatory to going home; that while stooping-over to pick up this sledge, this stone fell, and he was injured thereby. You are to measure his conduct at the'time of the accident, with the knowledge that he possessed before that time; consider that, and look at his conduct at the time of the happening of this accident.

“It would not be sufficient to defeat the plaintiff in this ease to show that he was'negligent at a time prior to the happening of the accident, unless such negligence contributed to his own injury. Look then, gentlemen, to all the circumstances that have been proved that bear upon this particular question. If you are not satisfied by a preponderance of the evidence that the plaintiff is guilty of negligence, which contributed to his own injury — as I have explained to you in these instructions — and if you are satisfied that the defendant was guilty of' negligence, and that such negligence was the proximate cause of his injury, then in that case, the plaintiff will be entitled to recover.

‘ ‘But, if upon the other hand, you are not satisfied that the defendant was guilty of negligence under the instructions I have given you, or if you are satisfied that it was, and are not satisfied that such negligence was the proximate cause of the injury which plaintiff has sustained, or if you are satisfied that it was the proximate cause of his injury, and you are satisfied by a preponderance of the evidence, that the plaintiff was negligent, and that such negligence contributed to his own injury, even in the slightest degree, then in that case your verdict should be for the defendant.”

To this part of the charge, so far as it goes, the plaintiff in error has no cause for complaint. Plaintiff in error claims, however, that while this part of the charge is, in the abstract, as favorable as it could ask, it does not go far enough to meet the facts of the case, and that the real controversy was not submitted to the jury by the court in its charge.

The defense to the action rested principally upon the application of the doctrine of contributory negligence. The plaintiff avers in his petition that he was without fault or negligence in the premises. This allegation is denied in the answer, and thus issue is fairly joined upon the question of negligence on part of plaintiff below. While the issue, as to plaintiff's contributory neg■ligence, is thus made up by the averment in the petition and denial in the answer, the course of trial and proof remained the same as if the answer had averred contributory negligence, and the reply had denied the same.

Plaintiff in error, defendant below, claims that the testimony established, or strongiy tended to establish, the following facts:

‘1 The defendant was engaged in operating a coal mine, employing about 300 miners. Trains of cars were hauled 'into the mine, through its main entry, by means of an endless chain. From this main entry, and upon either side of it, passageways were run, upon which opened the various rooms in which the miners were engaged in digging the coal. Empty cars were hauled from the main entry through these passages to the various rooms, and the loaded cars were taken therefrom by a mule hitched to the cars, which were in charge of a driver, whose duties were to deliver such cars to the room of a miner, and to take therefrom to the main entry the cars which the miner had loaded- with coal. The plaintiff was injured about three o’clock in the afternoon on Monday, August 29, by a stone which fell upon his foot from the roof of his room. He was thirty-three years of age, Was a 'practical coal miner, and had worked in this mine about two years. The stone which injured him fell near the second post back from the face of the coal on the left hand side of the track, which is located near the center of the room, and used for the passage of coal cars.

££At the time of the accident plaintiff’s room was well posted. The stone which injured him weighed about 100 to 150 pounds. The ■ plaintiff and his brother, Emil Estievenard, were working in the room at the time of the accident. These two men had opened the room, had done all the work therein since it was opened, and had sole charg’e and control over the room. It was the duty of the plaintiff and his brother to post the room, and the manner in which they posted it for their own safety, or other purpose, and the manner in which the coal was mined was a matter which was controlled by the judgement of the plaintiff and his brother. They also went to work when they pleased and used their own convenience as to when they ceased to work. The furnishing and preparation of the room itself was a part of the work which these miners were employed to perform, and the time during which they worked, and the manner in which they prepared the place in which to work, as well as the manner in which they mined the coal in their room, was left entirely to their own judgment. The room had been driven by these miners about twenty feet from the turn and it was about eighteen feet wide. They went to work on Friday morning about six o’clock and worked until about twelve o’clock on that day, when they ceased work, because the mines did not run upon the afternoon of Friday.

‘ ‘ The mines were idle all day Saturday and all day Sunday, and the plaintiff and his brother went to work in this room on Monday morning about six o’clock, and worked until aboiit the time plaintiff was injured. On Friday morning there were no posts in the room, and the plaintiff asked the driver on three or four occasions for posts. He knew he needed one in order to secure the roof of his room; but he received none, and he and his brother continued working in the room all of Friday until 12 o’clock. Plaintiff testifies that he would have set a post on Friday at the place where the stone fell, as the roof was likely to fall by Monday if it was not supported. Plaintiff asked the driver for props about six o’clock on Monday morning, the day of the accident, when he first went to his room. Afterwards plaintiff and his brother went into the passageway upon which his room opened, through the room of Louis Souillard, and found two posts which they set up in their room on the left of the track and about three feet from the face of the coal, and on the same side of the track drove the room four feet into the coal. About twelve o’clock they went into the room of their neighbor, Louis Souillard, and were told by him to take what posts they needed. They took two posts from those in Souillard’s room, and set them upon the left-hand side of the track about three feet behind the two posts which they had set on that day.

“The plaintiff’s brother, Emil Estievenard, testifies that he sounded the stone which fell, the first thing on entering the room about six o’clock on Monday morning and it sounded loose; that he thereafter repeatedly sounded the stone and that after the four posts were set on Monday, he thought the roof and the stone were safe, though the stone was a little loose. The plaintiff also testifies that the props were delivered into his room; that he unloaded them from the car and threw them to one side; that after he set the four posts he thought he was in security or safe; and that he had no need of other posts.

‘ ‘ That stones of the size and kind which injured plaintiff are almost constantly falling throughout the mine, and the proper and careful propping of a room will not prevent this. ”

Under this state of facts, defendant below claimed that plaintiff below was guilty of such contributory negligence as to prevent a recovery, and the court was requested to give the following separate charges, to the jury:

“1. If a part of the roof of the room in which plaintiff worked was unsafe and liable to fall, and props were needed for its support, and the defendant neglected to ■ furnish the props when needed, and the plaintiff knew the roof was in that unsafe condition, and remained in the room or otherwise exposed himself to the danger from the fall of the roof, when he could have left the room, the plain-' tiff cannot recover in this case.

“2. If a part of the roof of the room in which plaintiff worked was unsafe and liable to fall, and props were needed for its support, and the defendant neglected to furnish the props when needed, and the plaintiff had the means of knowing the roof was in that unsafe condition, and remained in the room or otherwise exposed himself to the danger from the fall of the roof, when he could have left the room, then plaintiff cannot recover in this case.

‘ ‘3. Under the most careful circumstances mining coal is attended with danger, and persons engaged therein are presumed to incur the risks incident thereto, and if the plaintiff in this case knew, or had the means of knowing-, that a part of the roof of the room in which he worked was unsafe and liable to fall, he cannot recover in this ease.

“4. If the defendant in this case neglected to furnish props at the room in which plaintiff worked, and the roof of the room was in a dangerous condition, and the plaintiff knew its condition, then plaintiff cannot recover in this case.

‘ ‘5. If the plaintiff knew the dangerous condition of the roof of the room, and continued in the service in the room, or remained therein, he cannot recover in this case.

“6. If the plaintiff knew of the unsafe or dangerous condition of the roof of the room in which he was at work, then he cannot recover in this case.

“7. If the defendant in this case neglected to furnish . props at the room in which plaintiff worked, and the roof of the room was in a dangerous condition, and the plaintiff had the means of knowing that the roof was in a dangerous condition, then the plaintiff cannot recover in this case.

“8. If the defendant in this case neglected to furnish props at the room in which plaintiff worked, and the roof of the room was in a dangerous condition, and the plaintiff, by the exercise of ordinary care, could have discovered the dangerous condition of the roof of the room, then plaintiff cannot recover in this case.

‘ ‘9. If the plaintiff, by the exercise of ordinary care, could have ascertained that the part of the roof which fell and injured him was in an unsafe condition and liable to fall, and exposed himself to the danger by going thereunder, he cannot recover in this case.

“10. If the plaintiff knew or had reason to apprehend that it would be risky to go under this stone referred to in the testimony that fell on the plaintiff, and with this apprehension and knowledge he took the risk, he cannot recover of the defendant.

“11. If the plaintiff knew or had the means of knowing that the stone which fell and injured plaintiff was loose and liable to fall, and went un der the stone, then plaintiff cannot recover in this action.

“12. That if the plaintiff, at the.time he was injured, was acting by his own will and his own judgment, uncontrolled by anyone connected with that mine, and if it was his duty to have determined whether or not the roof of the mine was safe to work under, and if the plaintiff was injured by his misjudgment, or negligence, he cannot recover in this action, and your verdict should be for the defendant.”

These requests were all pertinent to the case upon the facts as claimed by defendant below, and which were substantially conceded by plaintiff below, and were all sound law when applied to such facts. The plaintiff below was under obligation to use ordinary care for his own safety. Whatever he knew, or ought to have known, and failed to act upon with ordinary care for his own safety, constituted such negligence on his part, as would prevent a recovery. . To warrant a recovery, it m ust appear that the injury was caused, by the want of ordinary care on part of the employer, and the injury is not so caused, when it is caused by the want of ordinary care on part of the employer combined with want of ordinary care on part of the employee. If it took the want of ordinary care of both the employer and employee to produce the injury, both are at fault, and there can be no recovery by either. Where both parties are negligent, and the.injury is caused by such combined negligence, there can be no recovery by either party. Railroad Co. v. Transportation Co., 32 Ohio St., 116, 147; Railway Co. v. Elliott, 28 Ohio St., 340; Kerwhacker v. Railroad Co., 3 Ohio St., 172; Timmons v. Railroad Co., 6 Ohio St., 105, 109.

If the employer has been negligent, - either by omission or commission, and the employee knows of such negligence, or ought to have known thereof, he must act with reference thereto, and cannot shut his eyes and say that he relied upon the employer performing his duties. As to whether the employee was negligent, his actions should be judged by the facts as they existed, within his knowledge, or within what he ought to have known, at the time he acted or failed to act; and the previous negligence of the employer, which was known to the employee, or ought to have been known by him, will not excuse him.

In the case at bar, the failure to furnish props at the working place of the plaintiff below, was negligence on part of defendant below; but if plaintiff knew of this negligence, or ought to have known thereof, and remained in the room, knowing the roof to be dangerous, his injury was directly caused 'by his own negligence in remaining in a room known to be dangerous, and not by defendant’s negligence in failing to furnish props.

Again, if plaintiff below, obtained sufficient props from another room, and therewith propped his room, until he regarded it safe, and then entered the room and was injured, such injury was not caused by the failure of defendant below to furnish props, but by the error in judgment of plaintiff below in believing he had set up sufficient props to make the roof safe. Defendant below should not be charged with this error in the judgment of plaintiff below. Even though defendant below failed to furnish props and was therein negligent, yet if plaintiff below knew that the room was dangerous, or ought to have known it, and with this knowledge walked into the room, his injury was caused by his own recklessness, and not by the failure to furnish props. This was not a case in which the employer was to furnish a safe place for the workman, but a case in which the workman made his own place in which to work, and the duty of the employer ended with furnishing props to the working place of the miner. The miner is charged by statute with keeping his working place safe for himself, and all others coming thereto. If he neglects this duty, with props at hand, and fails to keep his working place safe, and is injured thereby, it is his own fault or misfortune, and not the fault of his employer.

The defect in the charge, on the question of contributory negligence is, that it is, in the abstract, dealing with generalities, and failing to deal with the facts of the case as claimed by the parties. Defendant below, by its requests, urged the court to say to the jury that certain facts, if found by the jury, would prevent a recovery; but the court refused to say what acts on part of plaintiff would defeat a recovery, and contented itself by telling the jury to look at all the evidence, t,o look at the knowledge of plaintiff, to look at his acts and conduct, etc., without telling them what use to make of such looking, or of the result thereof.

The charge of the court to the jury should not be in the abstract, but in the concrete, applicable to the particular facts of the case on trial. Bain v. Wilson, 10 Ohio St., 14. Usually the court should say to the jury that the facts as claimed by the plaintiff, if found to be true, do or do not constitute negligence on his part. In like manner the court should say to the jury, that the facts claimed by the defendant, if found to be true, do or do not constitute contributory negligence. Every case turns upon very few controlling facts, usually but one or two, and whichever'way these are found by the jury, the verdict should go. The attention of the jury should be called to these controlling facts with an instruction to return their verdict as they shall find such facts. If the criterion in the case is ordinary care, which is usually defined to be “such care as a reasonably prudent and careful man would exercise under the same or similar circumstances,” more satisfactory results can usually be obtained by the court saying to the jury, as matter of law (if the facts make it a question of law for the court), what under the' circumstances of the case on trial, would constitute such ordinary care. It would then be very easy for the jury to find the facts and return a verdict accordingly. If in a particular case it is not a question of law for the court, as to what would constitute ordinary care, the jury, by a special verdict, might find and say what care a reasonably prudent and careful man' should have exercised under the circumstances of that case, and then find what care the party did in fact exercise, or omit to exercise, and upon such finding’s, the court would be enabled to pass an intelligent judgment, and all parties would be advised as to the real facts upon which the verdict is founded, instead of guessing that it is founded upon “a consideration of all the surrounding facts and circumstances.”

The question as to what care a reasonably prudent and careful man would exercise under the circumstances of the particular case on trial, is either a question for the court or jury, and it would aid justice to have it found and brought into the record, either in the charge or in the verdict, so as to permit its review on motion for a new trial, or on error.

To make “such care as a reasonably careful and prudent man would exercise under the same or similar circumstances,” the criterion' or standard by which the acts and conduct of parties are to he judged, without ascertaining what care such reasonable man would exercise under the particular facts of the case on trial, is to judge men’s a(ets and conduct by an unknown, intangible standard about which every man on the jury would, at first blush, be likely to have different views.

To require the jury to consider this matter, when it is not a question for the court, would induce deliberation, to first define and establish the proper criterion or standard for that case, and then to square the acts and conduct of the parties with such criterion. Many hasty and ill-considered verdicts mighfithus be avoided.

Exception was also taken to the following part of the charg’e as given to the jury:

“It is not necessary, gentlemen, for you to find that the negligence of the defendant was the sole cause of the injury that the plaintiff has s ustained; if the negligence of the defendant concurred in producing this injury, without which plaintiff would not have sustained the injury, or the stone would not have fallen upon him, then in that ease 3K>u will be warranted in finding that the injury was caused by the negligence of the defendant. ’ ’

This is not sound law. If the negligence of the defendant below was not the sole cause of the injury, and the injury was produced by the negligence of defendant concurring1 with the negligence of the plaintiff (and there was no other negligence

with which to concur), then the injury was not caused by the negligence of defendant, but by the concurrent negligence of both plaintiff and defendant, and in such casé there can be no recovery by either party.

For the errors above pointed out, the judgments below are reversed, and the cause remanded to the court of common pleas for a new trial.

Judgment reversed.


author: Williams, J.,

text:
    Wetzell v. Richcreek.

      Consideration for written guarantee of lease — Failure of assignor to deliver possession — Breach of covenant of seizin and for quiet enjoyment — Effect of assignee's purchase of paramount title— Measure of damages— When court will not review judgment of reversal.

    1. A written instrument, executed and delivered by' the assignor of a lease contemporaneously with its assignment, stipulating that the lease ‘ ‘ is genuine and in full force and effect, ’ ’ and guaranteeing to the assignee “the rights and title of said lease, ” is founded on a sufficient consideration, and amounts to a covenant of seizin by the assignor of the demised premises, and that the assignee shall peaceably enjoy the same during the term of the lease according to its provisions.
    2. Such covenant is broken if the assignor have not the possession of the premises at the time of the assignment, and is unable to deliver the same to the assignee on account of a prior and paramount title and possession of another ; and the assignee’s right of action for the breach of the covenant will not be affected by his subsequent purchase of the paramount title, and possession thereunder.
    3. The measure of the damages which the plaintiff may recover in such action, is the amount of the consideration paid for the lease, with interest; and it is not essential to the recovery that the lease be reassigned, or tendered back.
    4. This court will not review a judgment of reversal, either (1), where the insufficiency of the evidence to support the verdict or judgment is expressly stated as a ground of reversal; or (2), where no ground of reversal is stated, and the record shows that the weight of the evidence was properly before the court; or (3), where one of the grounds stated is, that a motion for a new trial should have been sustained which alleges that the verdict was against the weight of the evidence, unless, in eases of the latter class, it appears that the reversal was upon grounds other than the weight of the evidence. But where the grounds of reversal are specifically stated, this court will treat those as the only ones upon which the reversal was placed, though it be not stated that no other errors were found in the record.
    (Decided May 14, 1895.)
    Error to the Circuit Court of Wood county.
    The original action was brought in the court of common pleas of Wood county, by Ross Wetzell, against Homer L. Huddle, Jefferson Richcreek and Lewis P. Fertig.
    The petition alleges that the defendant Huddle, acting for himself, Richcreek and one Weaver, undertook to sell and assign to the plaintiff and the defendant Fertig, a cértain lease made by Michael Heugel, of a tract of land owned by him, in Wood county, to the defendant Richcreek, and by him assigned to Huddle and Weaver; that to induce the purchase, Huddle falsely and fraudulently represented to the plaintiff and Fertig, that the lease was a valid instrument, in full force and effect, and the assignment of it to the plaintiff and Fertig- would transfer to and vest in them the estate, rights and interest which it purported to grant; and, retying on those representations, the purchase was made for the consideration of seven hundred and twenty dollars, of which one hundred dollars was paid at the time by Wetzell, and one hundred dollars more soon after; Fertig gave his check for one-half of the purchase price, but, as it developed on the trial, the check was returned to him, and he was paid a further consideration for bringing about the sale to Wetzell; Fertig being a mere instrument of Huddle and Weaver to effect the sale, and he pretending to be a purchaser in order to accomplish the sale to Wetzell. It is further alleged, that before the payment of the balance of the purchase money, doubts having arisen in regard to the validity of the lease, and the right of the defendants to assign the same, the plaintiff declined to make the payment, or accept the assignment, unless the defendants would give him further assurances that the assignment would be effectual to transfer the term and beneficial interest of the lease; whereupon the defendants executed and delivered to the plaintiff the following instrument in writing:
    “North'Baltimore, O., September 21,1887.

    “This is to certify that a lease" given by Michael Heug-el,' of Henry township, Wood county, Ohio, of one hundred and sixty acres of land to Jeff. Richcreek and by him assigned to H. L. Huddle, and by him assigned to - Ross Wetzell and Louis P. Fertig, is genuine and in full force and effect, and if the requirements of the lease is fulfilled, we, the undersigned hereby guarantee the rights and title of said lease.
    H. J. Huddle,
    Jeff. Richcreek.”
    Upon the delivery of that instrument, the plaintiff accepted the assignment of the lease, and paid the remaining- one hundred and sixty dollars of its purchase price. The petition then alleges, that the lease proved to be void, without effect, and worthless; that the owner had executed a prior lease of. the premises to Detwiler & Co., who held possession of the same, and who had, in an action duly prosecuted in the court of common pleas of Wood county, to which the defendants were parties, obtained a judgment against the defendants declaring the lease assigned to the plaintiff to be void, a,nd enjoining the defendants from asserting any right or claim under it, and from assigning it; which judgment was in full force when the defendants made the assignment of their lease to the plaintiff, and delivered to him the foregoing instrument guaranteeing its validity; in consequence of which judgment the plaintiff was wholly deprived of the benefit of the lease, and the possession of the demised premises. The value of the term, it is alleged, was worth fifteen hundred and twenty dollars, for which the plaintiff prayed judgment. The answer admits, in substance, the assignment of the lease to the plaintiff and Fertig for the consideration alleged, the execution and delivery to the plaintiff of the instrument of guaranty, the payment of the consideration, and that Detwiler & Co., who held by prior lease, had obtained a judgment against defendants as alleged in the petition; but it is averred that Detwiler & Co. failed to comply with the provisions of their lease, and never attempted to operate under it, or enforce their judgment as against the plaintiff, who, it is alleged could have gone into possession under the lease assigned to him and Fertig, but failed to do so, and failed to perform the conditions of the contract of guaranty. The answer also denies the fraud charged in the petition. The allegations of new matter in the answer were controverted, by reply. The cause was tried to a jury which returned a verdict for the plaintiff, for the amount of the consideration paid by him for the lease, with interest, and judgment was rendered on the verdict. That judgment was reversed by the circuit court, upon the grounds, as stated in the journal entry, that:
    ‘ ‘ The court erred in excluding evidence offered by defendant below as to the amount paid by plaintiff, Wetzell, for the said Detwiler lease.
    “The court erred in its charge to the jury upon the trial of said cause upon the subject of the measure of damages recoverable by the said Ross Wetzell in case it should be found that a cause of action had accrued to him as alleged in his petition as amended. ”
    It appears from the bill of exceptions, that the plaintiff being unable to obtain possession of the demised premises under the lease assigned to him, on account of the prior lease of Detwiler & Co., and the judgment against the defendants, he and one Craig, purchased of Detwiler & Co. their lease and entered into possession under it. Mr. Walters, a member of that firm, was called as a witness by the plaintiff, and having testified to the sale of the firm’s lease to the plaintiff and Craig, while it was in full force and operation, was asked on cross-examination, what amount was paid for it. An objection to that question was sustained, and that is the evidence which the circuit court held was erroneously excluded. And the following- is the portion of the charge held to be erroneous:
    “The measure of damages or the amount the plaintiff is entitled to recover if entitled to recover anything, is the amount paid by him for the lease, with interest from the date when paid.”
    The proceeding in error here, is prosecuted to obtain the reversal of the judgment of the court below.

      Parker c& Moore and Frank Taylor, for plaintiff in error.

      Bodge & Canary, for defendants in error.
   Williams, J.,

' The plaintiff’s right of recovery was based upon the alleged fraud in the sale and assignment of the lease, and the defendants’ obligation guaranteeing its validity and operative effect; and the part of the charge held by the circuit court to be erroneous, is that by which the jury were instructed that if they- should find, on either ground, for the plaintiff, he was entitled to recover the amount paid for the lease, with interest.

It cannot be doubted that if the plaintiff was induced by the fraud of the defendants to purchase and pay for .the lease, and it proved to be without force, and of no value, he should recover, at least, the money obtained from him by the fraud, with interest; so that, the practical question here, is what, in the absence of fraud, was the proper measure of recovery for the breach of defendants’ contract of guaranty? The ease is argued here, in support of the judgment of the circuit court,' upon the theory that the plaintiff’s action, in so far as it was founded on that contract, is in the nature of an action for the breach of a covenant against incumbrances, and, consequently, the amount of his recovery should have been limited to the cost of getting in the outstanding incumbrance, which the lease of Detwiler & Co. is claimed to have been, and nothing more; and this is probably the view adopted by the circuit court; while the court of common pleas treated the action as analogous to those for the breach of a covenant of seizin or title. Upon the former of these theories, it was undoubtedly competent to prove what sum the plaintiff was compelled to pay for the discharge of the incumbrance, treating the Detwiler lease as such, but the proof should properly have come from the plaintiff, for in its absence, the damages could only be nominal; and it is therefore not apparent how the defendants could have been prejudiced by the refusal to permit them to supply evidence essential to the plaintiff’s recovery of substantial damages, which he had omitted to furnish. But the question whether the defendants ’ contract of guaranty, with respect to the measure of damages recoverable for its breach, may properly be classed with covenants of seizin, is fairly made on the charge of the court, and its consideration becomes necessary in the decision of the case. A covenant of seizin is defined to be “an assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey, ” and extends not only to the land itself, but also to whatever is properly appurtenant to, and will pass by the conveyance of the land; and, though the covenant is usually found in conveyances of the fee, it is appropriate in leases and assignments of them. Indeed, it seems well settled, that in leases, the covenant, or its equivalent will be implied, unless the terms of the lease exclude the implication. It is said in Rawle on Covenants for Title, section 272- “With respect to estates less than freehold, covenants for title were from the earliest times implied, not only from the words of leasing, such as d&missi, concessi, or the like, but even from the relation of landlord and tenant, and such is the law at the present day, unless where, as in some of the United States, it has been altered by legislation.” And in section 273, that author says: “The covenants for title thus implied from the words of leasing, were and are two; first, a covenant that the lessor has power to demise, and secondly a covenant for quiet enjoyment, and both of these covenants are, of course, as are all common law implied covenants, general or unlimited.”

It is held by some authorities, that no covenants are implied in the assignment of a lease.' Waldo v. Hall, 14 Mass., 486; Blair v. Rankin, 11 Mo., 442. Other authorities, however, maintain the contrary doctrine. Thus, in Souter v. Drake, 5 B. & Ad., 992-1002, it is said by Lord Denman, that “unless there be a stipulation to the contrary, there is, in every contract for the sale of a lease, an implied undertaking to make out the lessor’s title to demise, as well as that of the vendor to the lease itself, which implied undertaking is available at law as well as in equity.” This would seem to be the better rule, because, it can hardly be supposed to be the intention of one party to purchase, or of the other to sell the mere instrument of lease without any beneficial interest under it, but rather that the subject of the purchase and sale is the right to enjoy the term purported to be demised, and all the benefits which it stipulates to confer on the lessee. But it is not deemed necessary to determine here, what, if any obligation may be implied from the assignment of the lease. It is, of course, competent for the parties to introduce into the assignment any covenant or stipulation pertinent to the subject which they have agreed upon; and it is not unusual for the assignor to covenant that the indenture of lease is good, that he has power to assign, that he will save the assignee harmless from former grants and incumbrances, and for quiet enjoyment. 2 Taylor on Landlord and Tenant, section 431. The instrument of guaranty executed by the defendants, and delivered to the plaintiff contemporaneously with the delivery of the assigned lease and the payment of the balance of its purchase price, was founded upon a sufficient consideration, and became a part of the contract of assignment. By it, the defendant stipulated that the lease was in full force and effect at the time of its assignment and delivery to the plaintiff, and guaranteed to him “the rights and title of said lease.” This amounts to an express covenant of the assignor’s title to the term demised, and for its quiet enjoyment by the assignee.

It has long been the law of this state, that a covenant of seizin is not broken so as to give the covenantee a right of action, if the covenantor had the actual seizin, though not the legal title, at the time of the conveyance, and the former is put in possession under it, until there has been an eviction under a paramount title. Stambaugh v. Smith, 23 Ohio St., 584, and cases there cited. And the same rule obtains in regard to a covenant for the quiet enjoyment of a lessee. Such eviction, however, may be constructive, as well as actual; as, where the covenantee has purchased, or taken a lease under, the paramount title, even without any actual change of possession, when the validity of such title has been established by the judgment of a court of competent jurisdiction, and, under certain circumstances, when it has not been so established. In opposition to this doctrine, it has often been urged, says Mr. Rawle, in his work on Covenants for Title, section 142, “that it confounds all distinctions between a covenant for seizin and a covenant for quiet enjoyment or warranty; and it has also been argued that an analogy exists to the rule which prohibits a tenant from disputing his landlord’s title, unless there has been an actual eviction under the paramount claim. But, in answer to such analogy, it may be said, first, that whatever may have been the origin'of this rule, or its earlier application, it is now well settled that whenever the landlord’s title is insufficient for the security of the tenant, the relation between them may be renounced, and the latter may protect himself under the paramount title.” The only effect of the judgment establishing such title, is that it makes a prima facie case of paramount title if the covenantor is not a party, and is conclusive evidence thereof, if he is a party to the judgment; while, if, without it, the covenantee surrenders the possession", or buys in the superior title to protect his possession, he does so at his peril, and assumes the burden of proving such superior title to which he would have been compelled to yield. So, when a covenantee is unable to obtain possession in consequence of an existing-possession by a person claiming and holding under an elder title, that is equivalent to an eviction. Taylor on Landlord and Tenant, section 314. The evidence in the case before us was such that the jury might well have found, as is shown by the verdict, that the defendants had broken their covenants in the contract of assignment of the lease to the plaintiff. They were not in possession of the premises, nor did they put the plaintiff in possession; on the contrary, Detwiler & Co., had the actual possession and the lawful right thereto under their lease, and, moreover, the defendant’s lease, by the judgment of a court of competent jurisdietion in an action to which they were parties, had been adjudged to be void, and all persons claiming under them had been enjoined by the judgment of the court from asserting any claim under it; so that, the plaintiff acquired nothing by the assignment of the lease to him. Under such circumstances there could be no valid objection to the purchase, by the plaintiff and Craig, of the Detwiler lease, if they chose to make it, for any price at which it could be obtained. That purchase was independent of the lease assigned by the defendants, and not analogous to the removal of an incumbrance in aid of the title, or to preserve a possession acquired under it. The plaintiff’s right of action against the defendants on their covenants was complete without such purchase, for they were broken as soon as made. He was under no obligation to delay, upon any expectation, however seemingly well grounded, that the Detwiler lease would be surrendered or forfeited, or otherwise extinguished; it was neither in the power of the plaintiff, or of the defendants, to terminate that lease for any violation of its conditions, or failure to perform them; that could only be done by the lessor for whose benefit they were inserted in the lease, and he might waive compliance with them or not, as he chose, and, certainly, as long as he permitted the lease to remain operative, no breach of its provisions could be available as a defense to the plaintiff’s action. The plaintiff was entitled to the immediate and peaceable possession of the premises, which the defendants covenanted he should have, and which they were unable to give him, and did not give him on account of the Detwiler lease and the judgment of the court sustaining it, and he was neither required to violate the injunction, nor incur the consequences of a forcible entry upon the premises, but was at liberty to obey the law and seek his redress by action on the defendant’s covenants. Nor, was it essential to the plaintiff’s action that he reassign or tender back the void lease; the action did not proceed as one for rescission, but for the 'total failure of title to the thing sold. 2 Sutherland on Damages, 264, 265; Parker v. Brown, 15 N. H., 176. No title having been conveyed, there was nothing to reconvey. Whether a different rule should be applied in a case where the tenant has been ousted from a material part of the premises only, which he elects to treat as an eviction from the whole, and throws up the lease, instead of retaining, as he may, possession of so much of the property as he has not been deprived of and suing the landlord for such damages as he has sustained from the partial eviction, is a question not arising in this case. Nor, is it material to the defendant’s liability on their undertaking, that it should constitute a covenant running- with the land, as counsel for the defendants in error seem to suppose, because the covenant was made directly with the plaintiff and not with a prior owner from whom the plaintiff derives title by conveyance and where the grantee becomes a party to the covenant only by the conveyance of the estate.

The liability of the defendants on their covenants being established, the measure of the damages was not less than that authorized by the rule given in the charge to the jury. In McAlpin v. Woodruff, 11 Ohio St., 120, it is said that, “where a grantee of an estate in fee simple, with warranty, is evicted by paramount title, of his entire estate, the rule of damages is settled in Ohio to be the amount of the original purchase nnney, with interest, not, however, to exceed the time limited by statute for the recovery of mesne profits from the time of eviction. So, if he be evicted of a definite portion of the premises, the damages are a proportional amount of the purchase money with like interest. King v. Kerr's Adm’r, 5 Ohio, 154; Foote v. Burnet, 10 Ohio, 317 ; Adm'rs of Backus v. McCoy, 3 Ohio, 211; Clarke v. Parr, 14 Ohio, 118; In analogy to this rule it has been held, that the rents reserved in a lease, where no other consideration is paid, must be regarded as a just equivalent for the use of the demised premises. The parties have agreed to so consider it. In case of eviction the rent ceases; and the lessee is relieved from a burden which must be deemed equal to the benefit which he would have derived from the continued enjoyment of the property. ’ ’ But, where a further consideration has been paid, in addition to the rent reserved, its amount or value may be recovered. In the case of Lock v. Furze, 19 C. B. (N. S.), 96, where a tenant in possession had, in consideration of a premium of £400, obtained from the landlord a second lease, to commence when the old lease should expire, but before this timearrived the lessor died, and, it being discovered that the second lease was an excessive execution of a power, the lessee, upon being notified that it would not be recognized by the parties in interest, secured the premises at a much higher rent, and then sued on the covenant for quiet enjoyment contained in the lease, the court held, “that the measure of damages was, beside the£400 premium paid and the- costs of preparing the void lease, the difference in value, as estimated by the jury upon the evidence, between the term professed to be granted to the plaintiff by his lessor and the seven years’ term which he obtained from the reversioners — in other words, the value of the term he had lost.” This decision was, on appeal, affirmed in Exchequer Chamber, and wás followed in the later case in the court of Exchequer of Rolph v. Crouch, L. R., 3 Ech., 44; and the rule it announces, it is said, prevails generally in this country. Taylor on Landlord and Tenant, section 317. At all events, in such cases the measure of damages is not less than the amount of the consideration paid, with the interest; and the trial court was not in error, we think, in applying that rule to the plaintiff’s action,

But, it is claimed, that though the. circuit court erred in reversing the judgment for the reasons stated by it, there were other sufficient grounds for the reversal, and if a correct judgment was rendered it should be affirmed, notwithstanding it is based upon indefensible-grounds. We have examined the other grounds pointed out by counsel, and already considered most of them, and have not discovered any substantial error of law sufficient to warrant the judgment of reversal by the circuit court. The defendant Fertig, was not a real party united in interest with the plaintiff, although he was supposed to be when the petition was filed. He paid no part of the consideration for the assigned lease, and was bound to pay none; he was not an actual, but a mere nominal party to the purchase, and never acquired any interest in the lease, his conduct, and that of the defendants in the use they made of him, was a palpable fraud on the plaintiff who paid all the'consideration money that was ever paid for the lease, and, upon the facts developed on the trial, had the same right to recover as if he had been the only party concerned in the purchase of the lease, as in reality he was ; Fertig’s role of purchaser, assumed by the connivance of the defendants being a mere sham and subterfuge to entrap the plaintiff. It is also claimed by counsel for the defendants in error, that, as their motion for a new trial included the ground that the verdict was against the weight of the evidence, the circuit court might have reversed the judgment on that ground, and this court should affirm because it is not required to examine the evidence to ascertain whether the circuit court misjudged its weight. True, the circuit court might have reversed upon the ground stated, but it appears from the record they did not do so. The statute, section 6709, of the Revised Statutes, requires that court, when it reverses a judgment, to “state the errors found in the record upon which the judgment of reversal is based.” It will be presumed that court performed its duty, and has stated all such errors, as the statute requires; and, therefore, that the court found no errors which are not so stated. According- to the practice adopted by this court, it will not reverse a judgment of reversal either, (1), where it is expressly stated that the reversal was because the verdict or judgment is against the weight of the evidence; or, (2), where the judgment of reversal is general, no grounds being stated, and the record shows the weight of the evidence was property before the court for review; or, (3), where the reversal is upon the ground that a motion for a new trial, alleging that the verdict was against the weight of the evidence, should have been' sustained, unless, in case of the latter class, it appears that the judgment was reversed upon grounds other than the weight of the evidence. But where the grounds of reversal are specifically stated, the court will treat those as the only ones upon which the judgment was reversed, though it be not stated that no other errors were found in the record. In this case the record shows the grounds of reversal to be the alleged errors referred to, in excluding the evidence, and in the charge of the court on the measure of damages. We assume, therefore, that the circuit court did not feel warranted in reversing on the weight of the evidence, and accept it, without examination, as sufficient to support the verdict.

The judgment of the circuit court will he reversed, and that of the common pleas affirmed.