author: Crew, J.

text:
    The Columbus Street Railway Co. v. Pace.

      On weight of evidence; court can grant but one new trial — Section 5306, Revised Statutes — Rule has exclusive application to trial courts — Not applicable to circuit court in reversal of case — Court procedure.

    The provision in Section 5306, Revised Statutes, that: “The same court shall not grant more than one new trial, on the weight of the evidence against the same party in the same case;” has special and exclusive application to trial courts, and such provision does not operate as a limitation upon the power of the circuit court, as a court of error, to reverse a case any number of times, on the ground that the verdict of the jury in the trial court was against the case on the weight of the evidence.
    (Decided April 28, 1903.)
    Error to the Circuit Court of Pickaway county.
    Joseph T. Pace, defendant in error, brought an action in the court of common pleas of Franklin county, Ohio, against The Columbus Street Railway Co., to recover damages for personal injuries. The case has been three times tried, twice in the court of common pleas of Franklin county, and once in the court of common pleas of Pickaway county. On the first trial the jury failed to agree, the second trial resulted in a verdict and judgment against the Street Railway Co., and in favor of the plaintiff, Joseph T. Pace. This judgment was, on error, reversed by the circuit court of Franklin county. On a change of venue the case was tried the third time in the court of common pleas of Pickaway county, which trial also resulted in a verdict and judgment in favor of Pace. Thereupon error was prosecuted by the Street Railway Co. to the circuit court of Pickaway county, which court affirmed the judgment of the court of common pleas. The Street Railway Co., plaintiff in error, is asking, in this proceeding, a reversal* of said judgment of affirmance. A further statement of the facts involved will be found in the opinion.

      Messrs. Booth, Keating, Peters & Butler, for plaintiff in error.

      Mr. Samuel Hambleton; Mr. W. M. Thompson and Messrs. Bennett & Bennett, for defendant in error.
   Crew, J.

The only question presented by the record in this case which we have thought it necessary, at this time, to consider or determine, is that of the proper interpretation, meaning and effect to be given to Section 5306, Revised Statutes, which section provides as follows: “The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case.” This statute is of comparatively recent date and so far as.we are advised has not heretofore received judicial interpretation in this state. Certainly not by this court. The office, meaning and intent of this statute are involved, and become material in this case, by reason of the action and judgment of the circuit court of Pickaway county, from which court this proceeding in error is prosecuted. As appears from the statement of facts in the record in this case, the circuit court of Franklin county, at the January term thereof, 1901, reversed a judgment of the court of common pleas and granted a new trial in this case, assigning as one of the grounds for such reversal, “that the verdict of the jury was manifestly against the weight of the evidence.” Thereafter upon a change of venue the cause was removed for trial to Pickaway county, and was there tried in the court of common pleas of that county. On that trial the plaintiff, who is defendant in error here, was again successful, obtaining a verdict against the Street Railway Co. in that court for $9,100. The Street Railway Go. thereupon filed its motion for new trial, alleging among other grounds therefor, that: “Said verdict was contrary to the weight of the evidence, and was not sustained by sufficient evidence.” This motion was overruled and the Street Railway Co. prosecuted error to the circuit court of Pickaway county, alleging as one ground of error the overruling of said motion for new trial. Upon the hearing of the case in the circuit court that court refused to consider the case upon the weight of the evidence and refused to consider or pass upon that ground of error alleged in the motion for new trial, notwithstanding the overruling of said motion was one of the errors assigned and relied upon by plaintiff in error, in its petition in error in that court. The reason given by said circuit court for such refusal can best be stated in the language of its only journal entry, which is as follows:

“The court, upon consideration of this action, find, that it appears in the. record and proceedings herein, that at the January term, A. D. 1901, of the circuit court of Franklin county, Ohio, upon a former hearing of this action between the same, parties, said circuit court reversed a former judgment entered in this cause between the same parties, and granted a new trial on the weight of the evidence; and that by reason thereof this court is precluded from considering this cause . on the weight of the evidence and from granting a new trial on that ground; and for that reason this court did not and does not consider, review or pass upon the error assigned in the petition in error, to-wit: That said common pleas court erred in overruling the motion for a new trial of this plaintiff in error on the ground that the verdict was against the weight of the evidence, and this court rules that it should not consider or pass upon the question of the weight of the evidence, and does not pass upon the same.”

Whether this action of the circuit court was erroneous is the question here for determination..

In the consideration of this case we shall assume, but without deciding or expressing an opinion upon ■that question, that for the purpose of reviewing this case on error, the circuit court of Pickaway county and the circuit court of Franklin county, were and are within the purview and meaning of section 5306, the same court. Thus leaving for determination in this case the naked question, whether by the prohibitive provisions of this section, the circuit court of Pick-away county was precluded from considering this case on the weight of the evidence, for the reason that the circuit court of Franklin county had previously reversed one judgment in the same case, on the ground that the verdict of the jury was not sustained by sufficient evidence. The answer to this question must be found in the proper construction and interpretation of Section 5306, Revised Statutes. Do the provisions of this section apply alike to both trial and reviewing courts, or are they limited in their operation and effect to trial courts only? It is the claim of counsel for defendant in error that the provisions of this section apply alike to all courts, whether courts of review or trial courts, and that the circuit court of Pickaway county was therefore without authority to reverse this judgment on the ground that it was against the weight of the evidence, the circuit court of Franklin county having previously reversed one verdict in this case on that ground, and that being without right to reverse for that reason, said circuit court of Pickaway county was relieved from reviewing the case on the weight of the evidence, and therefore that its refusal so to do was not error. If counsel are right in their interpretation of the scope and meaning of the provisions of section 5306, they are right in their conclusions, otherwise not. As indicated by its terms and provisions, this statute is essentially a statute of practice and procedure, and it is found in Revised Statutes under chapter 5, division 3, of title 1, which title is denominated: “Procedure in the common pleas courts, and in the circuit courts on appeal,” and while its position and place under this title is not necessarily conclusive or controlling in its interpretation, it is nevertheless significant as an aid in determining the intent and purpose of the legislature as to its scope and operation, and as to the courts to which its provisions should apply, and having been placed under this title instead of under title IV, which latter title is designated: “Procedure in the Supreme Court, circuit courts and common pleas courts, as courts of error,” would seem to evidence an understanding and purpose on the part of the legislature that it should have effect and application as to circuit courts, only when sitting as courts of appeal or trial courts. The provision of this statute is not that the same court shall not reverse a case more than once on the weight of the evidence, against the same party in the same case, and it will be observed that the statute does not in express terms, refer to the circuit court at all, nor does it, by apt language at least, attempt to limit or restrict the jurisdiction of that court as a court of error, as that jurisdiction is defined and conferred by Section 6709, Revised Statutes. However, if the construction of this statute contended for by defendant in error here is to obtain, it will go far towards nullifying the provisions of section 6709, by materially limiting, and in certain cases ousting, the. jurisdiction in ■error conferred by that section upon circuit courts. That such was the intention of the legislature will not be inferred, nor can any construction that will have such result properly be adopted, in the absence of the plainest expression of such intent and purpose upon the part of the legislature itself. The statute under consideration is to be construed with reference to the whole system of which it forms a part, and as said in Sutherland on Statutory Construction, Sec. 288: “It is to be inferred that a code of statutes relating to one subject was governed by one spirit and policy, and was intended to be consistent and harmonious in its several parts and provisions. For the purpose of learning the intention, all statutes relating to the same subject are to be compared, and so far as still in force brought into harmony, if possible by interpretation.” The City of Cincinnati v. Guckenberger, 60 Ohio St., 353.

On the adoption of section 5306, no change or amendment whatever was made in section 6709, which latter section confers upon circuit courts jurisdiction to review and reverse any final judgment of the court of common pleas, and said section -6709 is still in full force and effect, except in so far, if at all, as the same is rendered inoperative, or is by implication repealed, by the provisions of section 5306. But repeals by implication are not favored, and this court has said in the case of Dodge v. Gridley, 10 Ohio, 178: “Where two affirmative statutes exist, one is not to be construed to repeal the other by implication, unless they can be reconciled by no mode of interpretation.”

Applying these rules, it can hardly be supposed, when we consider its position in the statute and the nature and character of its provisions that section 5306 was thus intended to conflict with, or in any measure repeal, section 6709, or to vary, limit or restrict the jurisdiction and authority conferred by said last named section upon circuit courts as courts of error and review.

Again, the language employed in section 5306 would seem of itself to be such as to limit and restrict the application of the provisions of that section to trial courts only. That which is forbidden by the language of the section is the granting of more than one new trial on the weight of the evidence against the same party in the same case. A new trial is defined by Section 5305, Bevised Statutes, to be: “A reexamination, in the same court, of an issue of fact,” etc. But a circuit court in a cause pending in that court on error, which is reversed by that court for the reason that the verdict of the jury in the court below was against the weight of the evidence, is without jurisdiction or authority after such reversal, to reexamine and retry the issue of fact previously tried and passed upon by the jury in the lower court. The jurisdiction conferred upon the circuit court on proceedings in error, is to affirm, or to reverse, vacate or modify, the judgment of the lower court, but the circuit court is without authority after reversal, to retry an issue of fact that has been tried and determined by the lower court. Therefore a judgment of reversal by the circuit court cannot be held the granting of a new trial in the sense in which that term is employed in section 5306, or within its meaning as defined by section 5305.

The practice act of the state of Illinois which contains a provision very similar to that contained in Section 5306, Revised Statutes of Ohio, has received construction by both the Supreme and appellate courts of that state.

. The fifty-seventh section of that act provides that: “No more than two new trials upon the same grounds shall be granted to the same party in the same cause.” In the case of Railway Co. v. Patterson, this section was before the supreme court of that state for review, at the September term, 1879. At a former term, that court had reversed a judgment of the lower court in the same case, on the ground that the verdict of the jury was not sustained by sufficient evidence. It was urged there, as it was urged in the circuit court by counsel for defendant in error in this case, that the statute prohibited the court from again reversing, as by so doing it would be to grant more than two new trials to the same party in the same case. Chief Justice Walker, in the opinion in that case, said: “The revision of 1874 has changed the section, previously in force, in the statu! es. This section formerly in force in general terms prohibited the granting of more than two new trials to the same party in the same case. Under that section the question was before us in Wolbrecht v. Baumgarten, 26 Ill., 291; Silsbey v. Lucas, 53 Ia., 479, and Stanberry v. Moore, 56 Ill., 472. And in the last of these cases it was held that the statute does not operate to restrict this court in reversing judgments in the same case any number of times. And a third verdict was set aside in. that case, because it was not sustained by the evidence, thus virtually holding that section had no application to the practice in this court. The portion of the chapter on practice, in which this section is found, has no reference to practice in this court, and we are satisfied, when adopted, that it was the purpose that it should apply only to practice in the circuit and other courts trying the facts, and not to the appellate courts.” Railroad Co. v. Patterson, 93 Ill., 290.

Thereafter, in 1896, this section was before the appellate court, second district, of that state for review, in the case of Railway Co. v. Alsdurf, Admr., etc. Justice Crabtree, announcing the opinion of the court in that case, among other things said: “This case has been before this court on. two former occasions, and twice the judgment of the court below has been reversed. * * * On the last occasion when this case was before us we reversed the judgment solely upon the ground that the verdict was against the evidence, and that is the principal reason now urged for a third reversal. * * * We are not unmindful that three juries have found the issues for defendant in error upon substantially the same evidence, and it is insisted by his counsel that a judgment will never be of tener than twice reversed, because the verdict is against the evidence. We do not understand that there is any such rule of law. In the case of Stanberry v. Moore, 56 Ill., 472, it was held that the statute which provides that no more than two new trials shall be granted in the same case, has special application to suits in the circuit court, and does not operate to restrict the power of the appellate court in reversing judgments in the same case any number of times. And in that case a third verdict was set aside by the Supreme Court because it was not supported by the evidence.

In the case of Railroad Co. v. Patterson, 93 Ill., 290, the same ruling was followed and judgment based upon the verdict of a third jury was reversed, and the cause was not remanded.

In a case where the verdict is clearly against the weight of the evidence, it is not only our right, but our duty, to set it aside and reverse the judgment. Railway Co. v. Alsdurf, 68 Ill. App., 150.

It was doubtless tbe design and purpose of tbe legislature by tbe enactment of Section 5306, Revised Statutes, to thereby restrain tbe unlimited discretion of trial courts over verdicts of juries, whose peculiar province it is under our system of jurisprudence, to determine tbe facts. But in tbe absence of any such expressed intention, or irresistible implication arising from tbe language employed in tbe statute itself, we think it could not have been intended by tbe legislature by this act to limit, or take away tbe jurisdiction, or to restrict .and limit tbe power of tbe circuit court to but a single reversal, on tbe ground that tbe verdict of tbe jury in tbe court below was against tbe weight of tbe evidence. To give this act a construction that would thus restrict tbe power of tbe circuit court, would, we think, be far more calculated to injure than to preserve, tbe usefulness of tbe trial by jury.

The judgment of the circuit court is vacated and this cause is remanded to that court with instructions to consider the case on the evidence.

Judgment reversed.

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


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The Ann Arbor Railroad Co. v. Arthur Kinz, by His Next Friend, George Kinz.

      Boy enters unenclosed premises — Where adults not invited — Bank caves in — Owner not liable — Where condition does not indicate probability of such result — Law of negligence.

    The owner of an unenclosed tract of land within a city, which, has been graded to a level, leaving a bank on one side of the premises, to which premises adults are not invited, but suffered to resort for the purpose of playing base ball, which amusement attracts to the ground and along the bank young ¡boys to witness the games, is not liable for injury to one of such boys, caused by the caving or falling of the top of the embankment, where its condition does not, to the knowledge of such owner, indicate a reasonable probability of such result.
    (Decided April 28, 1903.)
    Error to the Circuit Court of Lucas county.
    The plaintiff below, who is now defendant in error, commenced his suit against' the plaintiff in error to recover damages for injury to his person occasioned by the caving of a bank of earth on the premises owned by the railroad company. '
    As the ruling on a demurrer to the petition is assigned as one of the errors committed by the lower courts, the entire petition, omitting the caption, is set out as follows:
    “The plaintiff, Arthur Kinz, is a minor of the age of thirteen years, and brings this action by his next friend, George Kinz.
    “The defendant is a railroad corporation engaged in operating and managing a railroad in Lucas county, Ohio, and prior to the time of the occurrences herein complained of was changing the terminus of its road and relaying and changing some of its tracks. In so doing, for the purpose of filling in another part of its roadbed, it made an excavation at a natural bank of ground at a place between Bush and Magnolia streets and opposite Kuper street and near the track of the Wheeling & Lake Erie railroad in the city of Toledo. Said excavation was made by a steam shovel in operating which the said defendant took out a large amount of earth and dirt and left a perpendicular bank of clay some twelve or fourteen feet high and extending several rods in length. This precipitous bank of clay thus left was dangerous by virtue of the fact that earth from the upper part was likely to fall at any and all times, and had been left in such condition since some time in July, 1895, during which time the said defendant was daily running heavy trains on its tracks, which had the tendency to make said bank of earth more loose, and at the time of the occurrences herein complained of the earth was, and had been for a long time, viz., over six months, liable at any time to slip and fall down and injure persons who might be near the bottom of said bank. And if such there were, they were in danger of being overcome or covered by the slipping and falling earth. The bottom of said place where the excavation had been made was left level with the surrounding country, open and accessible to any person.
    “Plaintiff says that the place where said excavation was so made, and the country immediately adjacent to and surrounding the same was, and had been for a long period of time, an open common, unfenced and so situated that it had been in common and general use for many years by people of all ages, and especially by boys for purposes of play.
    “The character of the ground and the dangerous condition of said bank, and the likelihood of its caving in and falling down, and the habit and custom of the public, children and boys, as aforesaid, to be in and about the premises and near to where it was dangerous, was known to the defendant, or by the exercise of ordinary care should'have been known, and it was the duty of the defendant, when it made said excavation, to have left the ground in such condition by grading and sloping it down so that it would not be liable to fall down and hurt persons near to the same, or, to have placed guards which would prevent people from going where the said danger existed. But the defendant negligently and carelessly left this overhanging bank in its dangerous condition, without attempting in any way to protect or guard people who might have occasion to be near there, from the danger of the earth falling and hurting them.
    “The plaintiff on the twenty-sixth day of August, 1897, was engaged in play near, and about the locality, with other youths and children, as he had frequently done before, and in the course of sport and play came to the bottom of said bank of earth, and without any knowledge of the danger of the same, was engaged in picking into the bank with his fingers, there being no especial warning that the earth was liable to slip down and fall, and the plaintiff, owing to his lack of experience and immature years, not knowing the danger thereof. All of a sudden the overhanging bank of earth fell down and over hini and some other youths who were playing with him, with the result that the plaintiff was entirely covered and buried by the earth. The alarm was given and he was, after a short period, dug out in an unconscious and bleeding condition and taken to his home, where he was confined to his bed for two months and to the house for four months.
    “Plaintiff says that, as a result of the bank of earth falling upon and burying him, the left side of his face has become paralyzed, the drum of his left ear injured so that plaintiff is unable to hear, and, as he is informed and believes, will be permanently injured, and hfe will always be unable to hear with his said left ear; that his spine was severely injured; his left eye so injured that the sight thereof will be permanently injured; that his health has been greatly impaired, and, as he is advised, his physical condition permanently weakened and affected. He has suffered great pain and anguish and will continue so to do, and, as he is advised, will always suffer from the results of the casualty complained of. He says that so far as he was concerned he was in the exercise of ordinary care, but that the defendant was guilty of great carelessness and neglect in permitting said bank of earth to remain loose, dangerous, unguarded, and liable to fall down and injure people. He therefore says that the defendant is liable to him for all the damage resulting from said injury, which are ten thousand dollars, for which amount he asks for judgment against said defendants.”
    The petition was afterwards amended by adding the following averment: “Plaintiff for amendment to the petition says that he avers that the place where plaintiff received his injury, as in the petition complained, was upon the land of, said defendant, and was and had been for a long time prior thereto under ■the control of said defendant.”
    The general demurrer to the petition thus amended was overruled, to which thh railroad company excepted, and then answered admitting its corporate capacity, and that it changed the terminus of its road, relaid and changed some of its tracks, and that in doing so it made an excavation at a natural hank of ground between the streets named in the petition, by the use of a steam shovel.
    The nature, extent and cause of the injuries to the plaintiff the answer denies, as well as all allegations of wrong or negligence made in the petition; and it alleges that the plaintiff was guilty of negligence which contributed dir.ectly to the injuries complained of. This charge of contributory negligence is deniel by a reply.
    At the close of all the evidence, the railroad company moved the court to direct a verdict in its favor, which was overruled and exception taken.
    Certain special charges were requested by the defendant company, which were not given as asked, but were modified, and as modified were given to the jury. A general exception to the charge was entered.
    The jury found for the plaintiff and assessed his damages at $1,100. The motion for new trial was overruled and judgment rendered on the verdict. The case was taken on error to the circuit court where the judgment was affirmed.
    Error is prosecuted in this court to reverse the judgments of the lower courts. The material and controlling facts are stated in the opinion.

      Messrs. Smith & Beckwith, for plaintiff in error,
    cited and commented upon the following authorities:

      Harriman v. Railway Co., 45 Ohio St., 11; Ellsworth v. Metheney, 12 O. F. D., 203; 104 Fed. Rep., 119;
      Felton v. Aubrey, 74 Fed. Rep., 350; Railroad Co. v. Aller, 64 Ohio St., 183; Heaven v. Pender, 11 Q. B. Div., 503; Corby v. Hill, 4 C. B. (N. S.), 556; Lynch v. Nurdin, 1 Q. B. Div., 29; Southcote v. Stanley, 1 H. & N., 247; Indermauer v. Dames, 1 L. R. C. P., 274; Clarke v. Chambers, 3 Q. B. Div., 327; Bolch v. Smith, 7 H. & N., 736; Powers v. Harlow, 53 Mich., 507; Formall v. Standard Oil Co., 8 Detroit Legal News, 453; Elliott on Railroads, Secs. 1259, 1260; Clark v. Manchester, 62 N. H., 577; Frost v. Railway Co., 64 N. H., 220; Talty v. City of Atlantic, 92 Ia., 135; Grindley v. McKechnie, 163 Mass., 494; Gay v. Railway Co., 159 Mass., 238; Lane v. Atlantic Works, 111 Mass., 136; Daniels v. Railway Co., 154 Mass., 349; Birge v. Gardner, 19 Conn., 507; Daley v. Railroad Co., 26 Conn., 591; Nolan v. Railroad Co., 53 Conn., 461; McAlpin v. Powell, 70 N. Y., 126; Ratte v. Dawson, 50 Minn., 450; Gillespie v. McGowan, 100 Pa. St., 147; Keffe v. Railway Co., 21 Minn., 207; O’Conner v. Railway Co., 10 So. Rep., 678; Hargreaves v. Deacon, 25 Mich., 1; Barney v. Railroad Co., 28 S. W. Rep., 1069; Bishop v. Railroad Co., 14 R. I., 314; Gavin v. Chicago, 97 Ill., 66; Vanderbeck v. Hendry, 34 N. J. L., 472; Clarke v. Richmond, 5 S. E. Rep., 370; Klix v. Nieman, 68 Wis., 271; Davis v. Railway Co., 58 Wis., 646; Walsh v. Fitchburg Co., 145 N. Y., 301; Dobbins v. Railway Co., 41 S. W. Rep., 62; Barrett v. Railway Co., 91 Cal., 296; Peters v. Bowman, 115 Cal., 345; Catlett v. Railway Co., 57 Ark., 461; Richards v. Connell, 6 N. W. Rep., 915; Indianapolis v. Emmelman, 108 Ind., 530; Benson v. Traction Co., 26 Atl. Rep., 973; Railway Co. v. Edwards, 90 Tex., 65; Ritz v. Wheeling, 31 S. E. Rep., 993; Railway Co. v. Beavers, 39 S. E. Rep., 82; 1 Thompson on Negligence, Secs. 1024 to 1051, inclusive.

      Messrs. Hamilton & Kirby, for defendant in error,
    cited and commented upon the following authorities:

      Railroad Co. v. Snyder, 18 Ohio St., 399; Harriman v. Railway Co., 45 Ohio St., 11; Railway Co. v. Shields, 47 Ohio St., 387; Railroad Co. v. Mackey, 53 Ohio St., 370; Railroad Co. v. Marsh, 63 Ohio St., 236; Rail road Co. v. Aller, 64 Ohio St., 183; Findlay Brewing Co. v. Bellman, 4 Circ. Dec., 22; 9 C. C. R., 277; Toledo Real Estate & Invest. Co. v. Putney, 10 Circ. Dec., 698; 20 C. C. R., 486; Railroad Co. v. Stout, 84 U. S., 657; Birge v. Gardner, 19 Conn., 507; Bennett v. Railroad Co., 102 U. S., 577; Railroad Co. v. McDonald, 152 U. S., 262; Railroad Co. v. Stout, 84 U. S., 657; Lynch v. Nurdin, 1 Q. B. Div., 29; Keffe v. Railroad Co., 21 Minn., 207; Powers v. Harlow, 53 Mich., 507; Townsend v. Wathen, 9 East, 277; Reynolds v. Railroad Co., 58 N. Y., 248; Kane v. Railroad Co., 128 U. S., 94; Hayes v. Railroad Co., 111 U. S., 228; Smith v. Railway Co., 90 Fed. Rep., 790; Railway Co. v. Jones, 95 Fed. Rep., 380; Keyser v. Railroad Co., 56 Mich., 559; Railway Co. v. Dun-den, 37 Kan., 1; Evansich v. Railway Co., 57 Tex., 123; Railway Co. v. Fitzsimmons, 22 Kan., 686; Ferguson v. Railway Co., 75 Ga., 637; Railway Co. v. Bell, 81 Ill., 76; Daley v. Railway Co., 26 Conn., 590; O’Mara v. Railway Co., 38 N. Y., 445; Powers v. Harlow, 53 Mich., 515; Railway Co. v. Rourke, 10 Bradw., 474; Earl v. Crouch, 61 Hun, 624; Earl v. Crouch, 131 N. Y., 613; Railroad Co. v. Popp, 27 S. W. Rep., 992; McAlpin v. Powell, 70 N. Y., 126; Schmit v. Kansas City Co., 90 Mo., 284; Penso v.
      McCormick, 125 Ind., 116; Water Works v. Orr, 83 Pa. St., 332; Whirley v. Whiteman, 1 Head (Tenn.), 610; Mullaney v. Spence, 15 Abb. Pr., N. S. (N. Y.), 319; Birge v. Gardner, 19 Conn., 507; Bransom v. Labrot, 81 Ky., 638; Malloy v. Saving Society, 21 Pac. Rep., 525; Car Works Co. v. Cooper, 60 Ark., 545; Pekin v. McMahon, 154 Ill., 141; Price v. Water Co., 58 Kan., 551; Doublin Cotton v. Jarrard, 91 Tex., 289; DeTarr v. Brewing Co., 61 Pac. Rep., 689; Herrick v. Wixom, 80 N. W. Rep., 117; Mackey v. Vicksburg, 64 Miss., 777; Railroad Co. v. Bockoven, 53 Kan., 279; 7 Am. & Eng. Enc. Law, 403; Koons v. Railway Co., 65 Mo., 592; Railway Co. v. Styron, 66 Tex., 421; Railway Co. v. Simpson, 60 Tex., 103; Evansich v. Railway Co., 57 Tex., 126; Railway Co. v. McWhirter, 77 Tex., 356; Barrett v. Railway Co., 91 Cal., 296; Callahan v. Railway Co., 92 Cal., 89; Ferguson v. Railway Co., 77 Ga., 102; Railway Co. v. Hedrick, 1 Wash., 446; Nagle v. Railway Co., 75 Mo., 653; Railway Co. v. Fitzsimmons, 22 Kan., 686; Bridger v. Railway Co., 25 S. C., 24; Railway Co. v. Robertson, (Tex.) 14 L. R. A., 781; S. C. 16 S. W. Rep., 1093; Bates v. Railway Co., 90 Tenn., 36; Walsh v. Railway Co., 145 N. Y., 301; Railway Co. v. Reich, 61 N. J. L., 635; Turress v. Railway Co., 61 N. J. L., 314; McEachern v. Railway Co., 150 Mass., 515; Corby v. Hill, 4 C. B. (N. S.), 556; Cooley on Torts, Ch. 10, p. 303; 2 Shear. & Redf. on Neg., Sec. 705; Black on Law and Prac. in Acc. Cases, Sec. 81; Thomas on Neg., Secs. 1078, 1083; Buswell on Law of Pers. Inj., Sec. 75; 1 Thompson on Neg., Secs. 1030-1051; Ellsworth v. Metheney, 104 Fed. Rep., 119; Formall v. Standard Oil Co., 86 N. W. Rep., 947; Clark v. Manchester, 62 N. H., 577; Talty v. City of Atlantic, 92 Ia., 135; Grindley v McKechnie, 163 Mass., 494; Gay v. Rail

      way Co., 159 Mass., 238; Daniels v. Railway Co., 154 Mass., 349; Ratte v. Dawson, 50 Minn., 450; Stendal v. Boyd, 69 N. W. Rep., 899; Barney v. Railway Co., 28 S. W. Rep., 1069; Vanderbeck v. Hendry, 34 N. J. L., 472; Davis v. Railway Co., 58 Wis., 646; Peters v. Bowman, 115 Cal., 345.
   Price, J.

We have for consideration in this case, not only" the question as to the sufficiency of the petition in stating a cause of action against the railroad company, but also, the question whether the uncontroverted facts submitted to the jury tend to establish a right of recovery. The evidence varies somewhat from the averments of the petition, but such variance consists mainly in the phraseology and its coloring, which are natural to a pleading, as compared with the narration of facts and events by witnesses upon the stand. Therefore, when we state the controlling and conceded facts of the case as they appear in the record, as well as in the briefs of counsel, we present also the substance of the petition.

At the close of all the evidence, the railroad company asked the coiirt to direct a verdict for the defendant. This the court refused to do, and the ruling was excepted to.

• It is not claimed that the testimony introduced by the defendant tended to strengthen the. plaintiff’s case, and the motion raised the question whether the undisputed facts tended to show a right of recovery. What are these facts?

The premises on which the boy sustained the injury belonged to the railroad company, and are situate in the north part of the city of Toledo, between Bush and Magnolia streets, lying not far from, if not adjoining the right-of-way Of the defendant company, and extended to the Wheeling & Lake Erie railroad, a distance of about two hundred feet. This tract of land was an open, unfenced common, not near any depot of the company, and none of its buildings were upon it. Part of this ground was higher than the remainder, and on it were some low places which the company desired to fill, and to grade the tract to a more even surface. In the slimmer of 1896, the company let a contract for the work contemplated, and it was entered upon some time in June of that year. The earth to make the fills was taken from the high ground of the tract by means of a steam shovel, and after the work of excavation had proceeded well towards completion, on account of a controversy between the company and the contractor, the work was suspended, which was sometime in August of the same year. The making of the excavation left a bank, mostly of clay, about ten feet high, and which was situated at least one hundred feet from the tracks of the Ann Arbor railroad.

The steam shovel which removed the earth from the bank left its surface uneven. From its base the ground sloped gradually toward the railroad. The lower portion of the ten foot embankment, had some slope outward, and the upper portion was nearly perpendicular; and at the time of the injury, the top of the bank at some places projected slightly. The low places in the tract of land had been filled, and the ground, except the bank and its base, graded so that it was nearly level, and it remained in that condition from the time the contractor quit work in the summer of 1896, until after the injury in August, 1897. No other or further work was done on the commons or at the bank during that time, and no change had occurred in the shape or condition of the bank, except as made by the weather and the acts of the injured boy and his companions.

After the work ceased in 1896, young men and others who desired to play base ball, assembled and played ball on this common; and this habit was renewed in the summer of 1897. The plaintiff, a boy about eleven years, of age, and others both older and younger than he, were attracted to the common by the games of base ball, and if they did not engage in that game themselves, were frequently onlookers while others played, and at such times, occupied the sloping base of the bank. On the day of the injury, the plaintiff and his companions were witnessing the game, and as on preceding days, whiled away á part of their time in digging into the clay bank — some with their fingers and others used sticks, the object being to get clay with which to make balls to throw at each other. This amusement was in progress at the time the plaintiff was injured. He, with others, had been so engaged during the progress of the game, and where the plaintiff was, or near thereto, a hole about a foot deep had been made in the bank four or five feet from its base. Some one used an iron ice hook instead of his fingers to get out the clay. While so engaged near the foot of the bank, the top of the bank caved and a portion of it fell upon the plaintiff, .Kinz, and he was injured.

The railroad company did not at any time invite the ball players or the plaintiff and his companions, or any one, to enter upon or visit the premises. The evidence tends to show that the agents of the company had knowledge that these young men and boys used the grounds for play, but no permission was given, except such as might be implied from silence. There is no evidence tending to show that the railroad company had any knowledge of the habit of the plaintiff or other boys to dig into the banks, or attempt to interfere with its condition. The means of knowing what was transpiring on the nnfenced common, were snch views of the place as the servants and agents of the company might obtain while on trains passing to and fro on the railroad; but we assume that the company had knowledge of the use being made of the premises for playing ball, and that boys, great and small, were in the habit of resorting there for play.

There had been no material change in the condition of the common or the bank from the time the grading had been left, except such change as the weather might have caused. This bank was largely clay, as all witnesses have testified, and it had passed through the period of á year of atmospheric changes — the storms of autumn, winter and summer- — and remained about the same when young Kinz received his injury. This fact shows that there was nothing in the situation to excite suspicion of danger of the bank falling, and there was nothing to arouse an anticipation on the part of the company that any danger lurked in the existence of the bank.

No new danger was taken onto the premises by the company, after the boys began to resort thither, nor did the company place thereon anything to attract children and cause them to congregate there. The only attraction for boys on the grounds, was the play of base ball conducted by older boys or men, who were also trespassers, or at best were licensees.

On this statement of the facts, a conclusion of law is not difficult to reach,

What duty, under these circumstances, did the railroad company owe these licensees? What duty was omitted by the company? One answer to this question is made by counsel for defendant in error on page two of the brief, where it is said: “The injury complained of as we contend, was attributable to the fact that the railroad company had prevented the contractor from finishing up his work. Had he been permitted to finish it up, the place would have been sloped down, with no likelihood of the clay bank falling over.” Again, on page three of the brief, it is said: “There never were any fences or other enclosures, nor guards, nor warnings to keep off, nor indications of possible danger.”

It does not require a close analysis of these complaints to expose their fallacy. The record discloses, that the trial court indulged to some extent, inquiries as to the justice and propriety of the order to cease the work, which the company gave the contractor; but such inquiries were wholly foreign to the case on trial. That was a matter of business between the railroad company and the contractor, to be settled by the parties or through the courts. The company was under no obligations to do any grading of the ground, and when it commenced, it could lawfully quit whenever it deemed it proper, being liable to any contractor for an unjustifiable breach of contract with reference to the work. While it would be under obligations to leave no unguarded pitfalls, or dangerous traps, to which children might be enticed, the extent of the excavation and where it should stop was a subject for its decision alone. It owed nothing to the public or any part of it in reference thereto.

One author states the general rule in this form: “The general rule undoubtedly is, that the owner or occupier of land is not bound to take pains to prepare his premises in any particular way, to the end of promoting the safety of children who may come thereon as trespassers or as hare licensees; bnt that, as in the case of adnlts, they take the premises as they find them, and if killed or injured by reason of the condition in which they find them, this does not give a right to an action for damages.” Commentaries on the Law of Negligence by Thompson, Yol. 1, Sec. 1025.

While this rule has the sanction of very many courts and text writers, indeed of a great array of authorities, it is by others regarded as harsh and severe when applied to children, and in many cases it is held that, the owner of open or other grounds, where children are permitted to resort by such owner, may be liable for his negligence in keeping on the premises any attractive danger or nuisance, or unseen dangerous conditions whereby a child may be injured. The latter is the more humane view and may be regarded as a modification of the general rule.

We think the better and more reasonable proposition is, that the owner of property owes no general duty to keep it in condition which will insure the safety of persons who go upon it without invitation or license; yet if he keeps upon his premises, dangerous machinery, or other things likely to attract children, and does not guard them to prevent injuries to them, he is liable for injuries resulting from his neglect to provide such guards. One of the reasons assigned for this rule by some authorities, is that the keeping on the premises a machine or other thing which naturally entices the very young and curious, and thus attracts their presence, may be construed as an implied invitation. to enter the premises so occupied by the dangerous machine or other device, in which case it becomes the duty of the owner to see that the person thus invited is not placed in peril.

But it is not our duty to pursue these various cases and authorities as they meet or diverge, for we have no case here calling for such labor. The facts before us show no secret dangers, traps, or pitfalls, and the premises were not in a dangerous condition; nor did the owner place or maintain thereon any object or thing to attract the young and unwary. It was under no obligation to the public or its youth, to complete the grading and slope down to perfect safety, all banks, and smooth out the uneven places left by the steam shovel.

The other fault found with the conduct of the railway company is, that the grounds were unenclosed, and there were no guards, nor warnings to keep off, etc.

What was there that seemed to require warnings or guards to keep off? Nothing but a clay bank several rods in length and about ten feet high in most places. It was in plain view and about its presence there could be no mistake. It had been there practically in the same condition for a year preceding the accident, except the effect of weather, which, as one expert witness states, tends to reduce the bank to a condition of repose. “All earth and sand weathers down into what we call a natural slope, or assumes an angle of repose.”

. In no decided case, or text-book do we find a rule that required this company to display signs of warning or signals of danger in front of the bank. Omitting to do so was not such negligence as would make it liable for the injury. The danger of the bank falling was neither imminent or probable until the boys began to undermine it, of which the company had no knowledge.

There is nothing in the record to show that it had reason to anticipate the result of the acts of Kinz and his companions. But Section 3324,' Revised Statutes, is cited as imposing a duty to fence the grounds. That section provides: “A company or person having control or management of a railroad shall construct, or cause to be constructed, and maintain in good repair on each side of such road, along the line of the lands of the company owning or operating the same, a fence sufficient to turn stock; * * * .” The section further provides for cattle guards and crossings, and makes the company liable in damages for neglect to maintain such fence, crossings and cattle guards. The “fence” spoken of must be sufficient to turn stock. From what? Evidently .the right of way and tracks of the railroad, and the crossings and cattle guards, are to make a safe way for the traveler over the tracks of the railroad, and the cattle guards to prevent cattle from passing from the crossing onto the tracks and right, of way of the railroad.

Hence, it is perfectly apparent that the statute does not refer to lands of the company other than its line of road and right of way, on each side of which must be a fence sufficient to turn stock; and it did not require the company to fence the common where Kinz was injured.

The defendant in error cites many cases, in which-the owner was held liable for injuries to children upon his premises, no one of which is authority here; nor do they furnish a correct rule by which to measure the conduct of plaintiff in error in this case. We can not spread out in this opinion the facts upon which each of the various cases stands, but an examination of them will verify our statement.

As a sample for investigation, take the case of Lynch v. Nurdin, 1 Q. B., 29, cited for defendant in error as a leading case. It is true this case seems to have been approved in two or more decisions of the Supreme .Court of the United States — see Railroad Co. v. Stout, 17 Wall., 657 (a turntable case), and Union Pacific Railway Co. v. McDonald, 152 U. S., 262 — and in decisions of many of our state courts; and it has been questioned, if not repudiated, since in English courts — see Hughes v. Macfie, 2 Hurl. & Colt., 747, and Mangan v. Atterton, 4 Hurl. & Colt., 388 — and it is not regarded sound by several American courts. However, it has been quoted with approval by this court in several cases. See Railroad Co. v. Snyder, 18 Ohio St., 399; Harriman v. Railway Co., 45 Ohio St., 11. But what is the Lynch v. Nurdin case? “Defendant left his horse and cart unattended, for half an hour, in a public street. During his absence, the plaintiff, a child between six and seven years old, got upon the cart. While the plaintiff was there, another child caused the horse to move on, and the plaintiff fell in consequence, and was hurt. Held, that defendant was liable in an action on the case for negligence, although the plaintiff had partly occasioned the accident by his- own trespass.” It is to be observed that the owner of the horse and cart. was first in the wrong in leaving them unattended in a public street, where a young child, rightfully also in the street, was enticed to climb onto the cart from which he fell. Contributory negligence, of one so young, could not be well sustained; and yet that case has become the reputed mother of a vast- progeny of adjudicated cases, each claiming to be a legitimate heir of the doctrine of the parent case. Many of them are “torpedo cases;” “turntable cases;” and most of them have decisive characteristics of some “attractive nuisance,” which the owner kept, or permitted on his premises, to which the children have been attracted and injured.

It is said in this case, that the lower courts were influenced to their judgments, by the case of Harriman v. Railway Co., 45 Ohio St., 11, and from the language of the opinion of the circuit court, it seems that it rested its conclusions on the Harriman case with some doubts and. hesitation. That was a torpedo case. The public, including children, had long been accustomed to pass along the railroad at a certain point, with the permission, or at least without objection on the part of the company. Some of its servants had left a torpedo enclosed in a box-shaped receptacle on the railroad at this frequented place. It was discovered by a boy who carried it to the plaintiff, another boy, who stood not far off. In exercising the youthful curiosity to know what was contained in the box, one attempted to open it, when it exploded, and severely injured the plaintiff. The case in this court was decided, as in the lower courts, on a demurrer to the amended petition, .which among other averments, alleged, “that there was no reason for making use of said torpedo at said time or place, nor was there any necessity of giving danger signals; but the same were used in mere wantonness, and with a view that said' train, on being moved forward, would pass over and explode the same.” The petition further charged that the railroad company negligently failed to explode the torpedoes, but left them on its road where it knew people, including children, were accustomed to pass, without hindrance from the company. This court held in that case that the petition stated a good cause of action, and with that decision we are still content. The torpedo was intrinsically dangerous, as well as attractive to children. But it does not follow that the rule laid down in that case can be carried to the support of every claim of liability made against the owner of premises for injuries to either adult or child, sustained while thereon by sufferance of the owner. Like every other case it is to be interpreted and applied according to the facts which were its groundwork. This is the only safe and satisfactory canon for the understanding of all adjudicated cases. How does that case apply to the questions at bar? What attracted young Kinz and his companions to the open grounds? The games of base ball as played by their seniors. So says all the evidence. No witness states that the clay bank attracted any one to those grounds. It was but an ordinary, uninviting, unsightly, dismal bank of earth. Therefore, the railroad company maintained no attractive or dangerous nuisance on its premises. Other and older trespassers furnished the attraction for the young boys, for which the company is not responsible.

A contrary doctrine would shift responsibility for the care and safety of children, from parents and guardians to their neighbors, an innovation in the law and morals of the land which we are not willing to encourage.

We are unanimously of the opinion there should be no recovery in this case. The petition fails to state a cause of action, and the court erred in refusing to direct a verdict for the defendant below.

The judgments of both the lower courts are reversed, and the plaintiff in error is entitled to judgment on the controlling uncontroverted evidence.

Judgment reversed and judgment for plaintiff in error.

Burket, C. J., Spear, Davis, Shauck and Grew, JJ., concur.


author: Shauck, J.

text:
    The Champion Ice Manufacturing & Cold Storage Co. v. The Pennsylvania Iron Works Co.

      Contract to furnish part of disabled machinery — On specified time —Breach of contract — Measure of damages — Value of use of machine during delay — Law of damages.

    in an action by the owner of machinery used in a plant in actual operation to recover damages for the breach of a contract to furnish at the time specified an essential part of a disabled machine, the measure of damages is the value of the use of the machine in the business for the time which intervenes between the date for delivery fixed by the contract and the date of actual delivery, if the circumstances are known to both parties at the time of making the contract.
    (Decided April 28, 1903.)
    Error to the Circuit Court of Hamilton county.
    In the court of common pleas the Iron Works Co. sued the Ice Manufacturing Co. for $498, the agreed price of a wrought iron shaft for an ice machine, with interest thereon. The ice company answered substantially admitting the purchase of the shaft at the price alleged in the petition, but by way of cross-petition alleged that the shaft was a necessary part of an ice machine, which was a part of a large system of machinery employed by it in the manufacture of ice; that it could not be operated without the shaft which was to be supplied by the iron company, of which the iron company was informed. It further alleged that on the seventh of February, 1894, a contract was made between the parties, whereby for the price named, the iron company was to furnish said shaft within three weeks from said date, and that it failed to make delivery of it for eight weeks from the date of the contract to the ice company’s damage in the sura of $3,000. By reply the iron company denied its agreement to deliver the shaft within three weeks from the date of the contract.
    On the trial of the case to the court, a jury having been waived, evidence was introduced, showing a contract by correspondence, which was entered into by a letter from the ice company to the iron company, dated February 6, 1899, as follows:
    “Pennsylvania Iron Works Co. Gentlemen: We have a Boyle (David Boyle) thirty-ton ice machine with a broken shaft, and wish to replace it with a new one, as soon as possible, and would like you give us a proposition on the same. The old shaft is eight inches diameter and eight feet long. We ought to have the new one a half inch larger in diameter. Will you upon receipt of this ‘wire’ us at our expense, if you can furnish it, and give price, size, weight, etc., f. o. b. Phila. Then we will if necessary send you exact size, etc. Also give us the time it will take to get .it ready for shipment in the telegram, and by so doing you will greatly oblige. Yours truly,
    “Champion Ioe Co.,
    “Per R. W. Dugan, Supt, and Treas.”
    To this the iron company answered by telegram on the day following as follows:
    “To Champion Ice Co. Shaft complete with cranks and pins four hundred and ninety-eight dollars f. o. b. cars here finish three weeks. Penna. Iron Wks. Co.”
    There was much more corespondence, but it did not affect the terms of the contract. Part of it occurred before the work was undertaken and a part after the delay intervened, in all of which the. ice company was urging the prompt shipment of the shaft in order that it might operate the damaged machine to meet the exigencies of its business. Evidence was also introduced showing that the iron company was engaged in the manufacture of ice machines of the particular pattern of machine for which the new shaft was desired ; that without the shaft the machine was wholly without efficiency; that the ice company was conducting an established business in the manufacture and sale of ice; that its business was very extensive; and that at this particular time its. need for the use of the disabled machine was great. The ice company also introduced evidence of the capacity of the machine when in operation, of the nature and extent of its business, and of the very large profits which it might have derived from the use of the machine.
    Although the evidence conclusively showed a delay of more than three weeks beyond the time stipulated for the delivery of the shaft, the court of common pleas dismissed the cross-petition of the ice company for damages on account of the delay in delivering the shaft, and rendered judgment in favor of the iron company for the agreed price of the shaft with interest thereon.
    On petition in error to the- circuit court it was by that court considered that there was no error in the record except in dismissing.the cross-petition of the ice company, and it was adjudged that as the evidence showed the value of the ice machine to be $15,000, the ice company was -entitled to have interest on that amount for the time of the delay in delivering the shaft deducted from the contract price, and that amount, $113.44 being remitted by the iron company, the judgment of the common pleas court was affirmed. The iron company prosecutes error here for the reversal of the judgment.

      Messrs. Maxwell & Ramsey, for plaintiff in error,
    cited and commented npon the following authorities:

      Leonard v. Telegraph Co., 41 N. Y., 544; Ice Co. v. Machine Mfg. Co., 29 Atl. Rep., 69; Hutchinson v. Pinch, 91 Mich., 156; Actien-Gesellschaft v. Armstrong, L. R. Q. B., 473; Liman v. Railroad Co., 24 N. Y. Supp., 824; Dayton v. Pease, 4 Ohio St., 80; Cincinnati v. Evans, 5 Ohio St., 594; Coal Co. v. Upson, 40 Ohio St., 17; 1 Sedg. Dam. (7 ed.), 128; Poposkey v. Munkwitz, 32 N. W. Rep., 35; Logemann v. Pauly, 76 N. W. Rep., 604; Brownell v. Chapman, 51 N. W. Rep., 249; Iron Works v. Oatmeal Co., 55 N. W. Rep., 518; Brownell v. Chapman, 51 N. W. Rep., 249; Coal Co. v. Hartman, 111 Fed. Rep., 96; Manufacturing Co. v. Pinch, 51 N. W. Rep., 930; Williams v. Milling Co., 37 Pac. Rep., 49; Furniture Co. v. Hascall, 24 N. E. Rep., 336; Richardson v. Chynoweth, 26 Wis., 656; Goebel v. Hough, 26 Minn., 252; Booth v. Rolling Mill Co., 60 N. Y., 487; Graves v. Glass, 53 N. W. Rep., 231; Shafer v. Wilson, 44 Md., 268; Simmons v. Brown, 5 R. I., 299; Chapman v. Kirby, 49 Ill., 211; Frye v. Railroad Co., 67 Me., 414; Holden v. Lake Co., 53 N. H., 552; Allison v. Chandler, 11 Mich., 542; White v. Moseley, 8 Pick., 356; Terre Haute v. Hudnut, 13 N. E. Rep., 686; Fibre Board Co. v. Lewiston & A. Elec. L. Co., 49 Atl. Rep., 1095; French v. Lumber Co., 14 N. E. Rep., 113; Schile v. Brokhahus, 80 N. Y., 614.

      Mr. Edward H. Baker, for defendant in error,
    cited and commented npon the following authorities:

      Hadley v. Baxendale, 9 Exch., 341; Griffin v. Colver, 16 N. Y., 489; Brownell v. Chapman, 51 N. W., Rep., 249; Booth v. Rolling Mill Co., 60 N. Y., 487; Davis v. Railway Co., 1 Disn., 24; Bank v. Telegraph

      Co., 30 Ohio St., 555; Ice Co. v. Ice Mach. Mfg. Co., 77 Md., 235; Mining Syndicate & Co. v. Fraser, 130 U. S., 611; Sedg. on Dam., 211, Sec. 149; Freeman v. Clute, 3 Barb, 424; Griffin v. Colver, 16 N. Y., 489; Cassidy v. LeFevre, 45 N. Y., 562; Witherbee v. Myer, 155 N. Y., 446; Baldwin v. U. S. Tel. Co., 45 N. Y., 744; Devlin v. Mayor, 63 N. Y., 8; Frazer v. Smith, 60 Ill., 145; Howard v. Stillwell & Bierce Mfg. Co., 139 U. S., 199; Wolcott v. Mount, 36 N. J. L., 262; Rogers v. Bemus, 69 Pa. St., 432; Clark v. Moore, 3 Mich., 55; Louis v. Steamboat Buckeye, 12 Re., 74; 1 Handy, 150; Cincinnati v. Evans, 5 Ohio St., 600; Daniels v. Ballentine, 23 Ohio St., 540; Rhodes v. Baird, 16 Ohio St., 573; Gaar v. Snook, 1 Circ. Dec., 142; 1 C. C. R., 259; Knorr v. Reedy, 11 Re., 465; 27 Bull., 103; Lawson v. Price, 45 Md., 139; Mentzer v. W. U. Tel. Co., 93 Ia., 752; 1 Sutherland on Dam., (2 ed.), 207, Sec. 100; Chapman v. Kirby, 49 Ill., 211; Cooley on Torts (2 ed.), 775; 106 Ind.; Cent. Union Tel. Co. v. Bradbury, 66 Md., 399; W. U. Telegraph Co. v. Hall, 124 U. S., 444; Turner v. Hawkeye Tel. Co., 41 Ia., 458; Rittenhouse v. Ind. Line of Tel., 44 N. Y., 263; Sedg. on Dam. (8 ed.), Sec. 75, pp. 658-660; 1 Am. Law Reg., 685; Gray on Communication by Tel., Sec. 6.
   Shauck, J.

The request of the ice company for a proposition for furnishing the shaft gaye prominence to its desire for a definite understanding as to the time when it could be furnished. The iron company’s proposition to furnish it in three weeks, when accepted, had the force of a stipulation; and no reason appears why there should not be a recovery for its breach. The reasons for the delay which were given upon the trial might well serve to relieve the iron company from culpability, but not from the obligation of its unconditional undertaking to furnish the shaft at the time specified.

Nor does it appear that the circuit court gave adequate compensation for the breach when it required the iron company to remit from the judgment which •it had recovered in the common pleas court interest upon the value of the machine for the thirty-three days which it found to have intervened between the time stipulated for the delivery of the shaft and the date of its actual delivery. When the breach of a ■contract consists in the failure to pay money, interest is allowed as compensation because, according to common understanding, it actually represents the value of the use of the money. But in this case the parties were not stipulating for the use of money, nor could there have been in the contemplation of either party damages resulting from the failure to pay money.

The celebrated case of Hadley v. Baxendale, 9 Exch., 341, has been generally accepted as defining correctly the principles upon which damages should be assessed for a breach of contract. It has been so accepted in this state. They are such damages as arise naturally from the breach of the contract, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Later decisions show that there has been difficulty in the application of these principles to particular cases, and that case has been many times interpreted and its statements paraphrased, though the correctness of the principles which it defines has been generally, if not universally accepted. It does not appear that such view has ever been taken of the case a,s would justify the assessment of damages for the deprivation of the use of property by the computation of interest upon its value. Nor upon the other hand, would it justify the recovery by the ice company in the present case of the large profits which, as its testimony tended to show, were probably lost by reason of the delay. In that respect the'case should be regarded as within the rule as familiarly stated, that profits or speculative damages are not recoverable, but which would give the result of a much larger number of cases, and be much less liable to misconstruction, if it were said to be that the law does not permit the récovery of damages which can be ascertained only by speculative methods. The recovery of lost profits in the present case would involve the local condition of the markets, •peculiarities of the ice company’s business, its ability-to substitute other machinery for the disabled machine, and other elements of injury not arising naturally from the breach of the contract nor presumably within the contemplation of the parties as the result of a breach. By the terms of the correspondence and the circumstances in which it was conducted, the iron company was admonished that the loss of the use of the disabled machine would result from its failure to furnish the shaft at the time agreed upon, and the loss of such use results naturally from the breach. The value of the use of the machine for the time intervening between the day stipulated for its delivery and the day of its actual delivery should therefore be ascertained and awarded as damages. Evidence of the capacity of the machine and the extent and character of the ice- company’s business was properly admitted to aid in assessing damages under the rule stated. In language used so frequently as to be well understood: “It was to be considered in arriving at the rental value, though not constituting the measure of damages.”

Judgments of the circuit and common pleas courts reversed.

Burket, C. J., Spear, Davis, Price and Crew, JJ., concur.


author: Davis, J.

text:
    Overholser v. The National Home for Disabled Volunteer Soldiers.

      National Home for Disabled Soldiers — A corporation created by congress — Part of federal government — Cannot be sued for tort — Nature of grant of power to sue and be sued — Legal rights.

    1. The National Home for Disabled Volunteer Soldiers is a corporation created by congress for the purpose of performing an appropriate and constitutional function of the federal government, and for national purposes only; and as such it is a part of the government of the United States, and cannot be sued in an action sounding in tort.
    2. The grant of power to sue and be sued at law and in equity applies to such matters only as are within the scope of the other corporate powers of the defendant, and it does not authorize such corporation to be sued for a tort.
    (Decided April 28, 1903.)
    Error to the Circuit Court of Montgomery county.
    This action was begun by a petition in the court of common pleas of Montgomery county, of which the following is a copy:
    “The plaintiff, Neil Overholser, says that the defendant, The National Home for Disabled Volunteer Soldiers, is a corporation duly incorporated and organized under the laws of the United States, under section 4825, and the following sections of chapter 3, title 59, of the Revised Statutes of the United States.
    “Said corporation owns and controls, under said laws, a large body of land, located in Jefferson township, Montgomery county, Ohio, covered with barracks, dwellings, hospitals, gas and other manufactories, with all the necessary and convenient accommodations for the support of over 5,000, persons in what is known as ‘The Central Branch of the National Soldiers’ Home,’ and has possession of about 700 acres of land, the management and control of over 5,000 inmates, and all the machinery, manufacturing, and general apparatus of said institution, including sewerage.
    “The plaintiff says that upon said land the defendant has constructed, .for the use of said home, a number of tanks in which it is accustomed to keep in storage a large quantity of crude oil for use for lighting, heating, and manufacturing purposes; that it has also constructed upon said grounds a number of artificial lakes or reservoirs in which it has collected large bodies of water, not naturally subject to be collected upon said grounds; that among other things, said home owns and controls and manages a large hospital in which there are continually under treatment a large number of the inmates of said institution, from which a large quantity of sewerage results, which is carried away and disposed of by said defendant.
    “The plaintiff says that he is the lessee of a tract of land comprising about twelve acres located partly in Dayton, Ohio, and partly in Harrison township, Montgomery county, Ohio, at the corporation line of said city, and between it and the said Central Branch of the National Soldiers’ Home; that a creek or branch, sometimes known as ‘Dry Hollow,’ leads down from the land of said defendant which is located upon an elevation above that so leased by plaintiff, to and across the land so leased.
    “On the fourth day of June, 1896, the lands so leased by the plaintiff were all in a high state of cultivation, he having planted the same in garden truck of various kinds, and devoted a great deal of care and attention to the same, so that all of the crops growing thereon were in good, sound, healthy condition, many of same being almost ready for market.
    “On that' day, through the negligence of the employes of the defendant, and without any fault or contributory negligence on the part of the plaintiff, a large quantity of water which had been artificially' collected by the defendant in one or more of the lakes aforesaid, was, without right so to do on the part of the defendant, discharged into the said ‘Dry Hollow,’ and precipitated in a flood upon the lands so leased by the plaintiff. At the same time through the negligence of the defendant, without any right on its part so to do, without any fault or neglect on the part of the plaintiff, a large quantity of oil was discharged from the cisterns and reservoirs in which the defendant had collected the same, and in addition thereto, a large quantity of sewerage, consisting of vile, noxious, and foul-smelling substances, arising from said hospital and the use of same by defendant, were carried down and collected by it in artificial sewers, and all of said substances were discharged by the defendant into the said ‘Dry Hollow,’ and together with and by means of said volume of water, were carried down and lodged and discharged upon the lands so leased by tbe plaintiff, as aforesaid. As a result, more than six acres of his lands were wholly submerged, and after tbe subsidence of tbe water, tbe foul substances aforesaid were left and deposited thereon in such a way and to such an extent that a large part of bis crops, consisting of potatoes, red beets, turnips, cucumbers, beans, and peas, etc., were utterly and wholly destroyed, and tbe remainder were so soaked and permeated with tbe foul substances aforesaid as to be rendered utterly unfit for market, or for use in any way.
    “Tbe plaintiff says that the defendant, having undertaken to collect tbe water, oil, and other substances on said ground, was bound to so restrain and control tbe same as not to permit their- escape to the damage of tbe plaintiff. Tbe plaintiff says that be has been damaged, by reason of tbe premises, in tbe sum of three hundred dollars, for which, with interest, be asks judgment.”
    Defendant answered as follows:
    “Said defendant admits its incorporation, that it owns and controls tbe real estate (over 500 acres) described in plaintiff’s petition, and tbe averments as to tbe number of inmates cared for by defendant. Tbe tanks and artificial bodies of water are located on tbe real estate, as described in plaintiff’s petition; admits tbe ownership of tbe real estate in plaintiff-as set out in plaintiff’s petition; denies each and every other allegation in said petition contained. Wherefore, prays to be dismissed for its costs herein.”
    Tbe trial in tbe court of common pleas resulted in a verdict for tbe plaintiff. A motion for a new trial was made and overruled and a bill of exceptions taken and judgment on the verdict for plaintiff. On petition in error in tbe circuit court tbe judgment of tbe court of common pleas was reversed, as follows:

      “This day came on the above cause for hearing upon the petition in error, and was argued by counsel. Upon consideration of the same, the court finds there was error in the charge of the court as to the degree of care required of the plaintiff in error; also in refusing to charge, as requested by the plaintiff in error, in special charge number fen.
    “The court further being of the opinion that, upon the pleadings and the facts in the case, there was no liability upon the part of the plaintiff in error, it being the part of the government of the United States.
    “It is ordered that the judgment rendered be reversed, and that the petition of the plaintiff in error be dismissed at the cost of defendant in error, and that this cause be remanded to the court of common pleas for execution.
    “To all of which findings, and to which judgment and order, the above named defendant in error, Neil Overholser, by his attorneys, excepts.”
    To reverse this judgment of the circuit court a petition in error is filed in this court. Among the •assignments of error is the following: “Said circuit court erred in finding that the defendant in error •is part of the government of the United States, and that for this reason there was no liability upon its part to the plaintiff in error.”
    Messrs. Young & Young, for plaintiff in error.
    The home is a corporation, and the statute under which it is organized expressly provides that it shall have power to sue and be sued in courts of law and equity. Soon after its organization, the Supreme Court of Ohio decided that its inmates were exclusively within the jurisdiction of the government of the United States. Sinks v. Reese, 19 Ohio St., 306.

      But, shortly after the decision of this case, by an act of congress, passed January 21, 1871, jurisdiction oyer the home was relinquished by the United States and ceded to the state of Ohio. The effect of this recession coming under consideration in the Supreme Court, in Renner v. Bennett, 21 Ohio St., 421.
    Eyen before the recession of the jurisdiction to the state, the supreme court of Wisconsin, differently from the Supreme Court of Ohio, held that the home was always subject to the jurisdiction of the state courts. In re O’Connor, 37 Wis., 379; 19 Am. Rep., 765.
    The home is not a quasi corporation, like boards of county commissioners, township trustees, etc., but it is a corporation which, under the law creating it, is expressly giyen the power to sue and be sued.
    The acts complained of in the. petition were a trespass upon plaintiff’s property and distinguished from mere negligence in the performance of a ministerial act.
    The circuit court suggests that the remedy of the plaintiff below would be a suit against the officers of the home personally. This might be a very poor remedy. Some of them may be financially responsible, while others may not be.
    In the case of a corporation like the home, with capabilities for injuring the persons and property of others by the commission of tortious acts many fold greater than that of other corporations in the state, it would seem to be establishing an exceedingly dangerous doctrine to say, as the circuit court has done in this case, that the home cannot be held liable in the courts for injuries thus inflicted.
    In support of our contention that the petition does state a cause of action for which the home is liable to be sued, and that it should not have been dismissed, we cite the court to the following authorities: Anthony v. Adams, 1 Metc., 284; Lawrence v. Fairhaven, 5 Gray, 110; Perry v. Worcester, 6 Gray, 544; Parker v. Lowell, 11 Gray, 353; Wheeler v. Worcester, 10 All., 591; Prop. of Canal Locks v. Lowell, 7 Gray, 223; Hildreth v. Lowell, 11 Gray, 345; Haskell v. New Bedford, 108 Mass., 208; Hill v. Boston, 122 Mass., 344; United States v. Lee, 106 U. S., 196; Hannon v. St. Louis Co., 62 Mo., 313.
    A corporation, although much of its work was of a charitable nature, whose purposes were also social, including the giving of lectures and of theatricals and other entertainments for the benefit of its members, the provision of a gymnasium and of athletic sports for promoting the health, and the sale of food at a coffee or lunch counter, was held not within the exemption protecting public charitable corporations from liability for the negligence of servants. Chapin v. Christian Assn., 165 Mass., 280; Glavin v. Hospital, 12 R. I., 411; 34 Am. Rep., 675; Donoldson v. Public Hospital, 30 N. B., 279; Levingston v. Lurgan Union, 2 Ir. R. C. L., 202; Mersey Docks, etc., v. Gibbs, L. R., 1 H. L., 93; Mersey Docks & H. B. (Tr.) v. Gibbs, 11 H. L. Cas., 686.

      Messrs. McMahon & McMahon, for defendant in error.
    Our objection to the liability of the National Home is twofold:
    1. Institutions of this character are generally held to be exempt from liability for acts of mere negligence upon the part of employes or subordinate officers.

      2. The institution is practically the United States government, doing its work through a mere governmental corporation, which work could be as easily done through the war department, or any similar branch of the government, and' the government cannot'be sued in tort.
    ' I. The National Home is a mere branch of the government, to which is confined the care of its disabled soldiers. Section 4825, et seq.'

    Revised Statutes, 1878. On .March 3, 1875, section 4831 was repealed. Revised Statutes Supplement, Yol. 1, p. 71.
    In the year 1885, the method of appropriations for the support of the various homes was changed. Formerly the appropriations were in hulk for each institution. By the new law, congress requires the managers to submit detailed • estimates to the secretary of war, who submits the same in detail to congress, and by congress they are considered and allowed. This is the source of the revenue of the homes, and money is specially appropriated for specific purposes. Revised Statutes Supplement, Yol. 1, pp. 486, 513, 627, 928; Revised Statutes Supplement, Yol. 2, pp. 256, 257.
    The home has no power of taxation, or assessment, no local government, no ownership of the ground or other property, except in trust for special purposes, no stock, no means of acquiring land or property, except appropriations and donations; and it is under the rules and articles of war. The character of the institution is well-defined in two cases in the Supreme Court of Ohio, wherein its nature was directly involved. Sinke v. Reese, 19 Ohio St., 306; Renner v. Bennett, 21 Ohio St., 431.
    This corporation was established for the convenience of the government of the United States. All its duties could be performed without its intervention. The war department could take it in charge, and through retired officers could discharge the duties and obligations- with perfect satisfaction. Indeed, the proposition to make the change has been often advocated by'high officials.
    To sue the home is to sue the government of the United States. Any judgment rendered could be satisfied only by a levy upon United States property. The distinction in cases of contract and tort is well stated in a recent case in the Supreme- Court of the United States. Belknap v. Schild, 161 U. S., 10.
    The remedy is against the officer, who must respond in proper cases, out of his private means. To sue the home is to endeavor to make the government pay. Conwell v. Voorhees, 13 Ohio, 524.
    The District of Columbia has been held liable as a “municipal corporation,” but only as such, in several cases in the Supreme Court of the United States. Barnes v. District of Columbia, 91 U. S., 540; Railway Co. v. District of Columbia, 132 U. S., 1; District of Columbia v. Woodbury, 136 U. S., 450.
    There is little conflict of opinion as to such cases.
    II. We proceed now to the second point made by us; namely, that aside from its being a part of the government of the United States, the nature of the institution is such that it is not liable under the law of Ohio, as established in our numerous decisions. This -ground is practically a reassertion of the reasons given under the first head.
    A marked distinction has been recognized between municipalities and other quasi corporations in liability for torts or mere acts of negligence of officers or employes. And a distinction is drawn even in the case of cities. Thus, in Ohio, cities have been held exempt from liability for neglect to quell a mob destroying property; for damages for failure to extinguish a fire by reason of a defective department or apparatus; for damages for defective plan of sewerage; for injuries resulting from permitting cannon to be fired in the streets; and for death resulting from the careless handling of defective fire apparatus in the public streets. College v. Cleveland, 12 Ohio St., 375; Wheeler v. Cincinnati, 19 Ohio St., 19; Springfield v. Spence, 39 Ohio St., 668; Robinson v. Greenville, 42 Ohio St., 629; Frederick v. Columbus, 58 Ohio St., 538.
    The duties performed in the cases above referred to were found to be governmental, and not merely administrative for the sole benefit of the citizens combining into a city. But other classes of corporations — with full power to sue and liability to be sued —have also been held exempt in Ohio, as the following references will show: Commissioners v. Mighels, 7 Ohio St., 119; Grimwood v. Commissioners, 23 Ohio St., 600; Finch v. Board of Education, 30 Ohio St., 37.
    In these cases, county commissioners were held free from corporate liability for defective courthouse, and the flooding of adjoining lands; and a board of education — a full corporation — was dismissed without damages for injuries received from defects in a schoolhouse.
    The distinction is well illustrated by a more recent decision in Ohio, the language of which is practically decisive of the case, Assuming Judge Williams’ clean-cut statement of the law to be correct. Dunn v. Agricultural Society, 46 Ohio St., 93.
    We assume that the law of the state of Ohio, as found, in its decisions, will apply in so far as the liability of such institutions is concerned upon the principles of general law. Of course, if a federal question were involved, as would be the case if the immunity is claimed under the laws of the United States, final adjudication might be had in the Supreme Court of the United States, if the decision was adverse to the home.
    The decisions in other states are in harmony with the rule in Ohio. Williamson v. Reform School, 95 Ky., 251; Perry v. House of Refuge, 63 Md., 20; Benton v. Hospital, 140 Mass., 13; Hill v. Boston, 122 Mass., 344; Hearns v. Hospital, 66 Conn., 98.
   Davis, J.

The controlling question in this case is whether the defendant can be sued for a tort. It is a well established principle in our jurisprudence that no suit can be maintained against the United States, or against its property, in any court, without express authority of congress. In some of the cases it has been held that for the purposes of jurisdiction there is no distinction between suits against the government directly, and suits against its property. Stanley v. Schwalby, 147 U. S., 508; Stanley v. Schwalby, 162 U. S., 255, 269-270. The defendant is admitted to be a corporation. Territorially it is within the jurisdiction of the state of Ohio; but by the act of congress ceding that jurisdiction, it is provided that nothing contained in that act shall be construed to impair the powers and rights in and over said territory theretofore conferred upon the board of managers of The National Asylum for Disabled Volunteer Soldiers. These powers and rights were conferred upon the president of the United States, the secretary of war, the chief justice and nine others chosen from time to time by congress, constituting “a board of managers of an establishment for the care and relief of the disabled volunteers of the United States army, to be known by the name and style óf ‘The National Home for Disabled Volunteer Soldiers,’ and have perpetual succession, with powers to take, hold and convey real and personal property, establish a common seal, and to sue and be sued in courts of law and equity; and to make by-laws, rules, and regulations, not inconsistent with-law, for carrying on the business and government of the home, and to affix penalties thereto.” Congress reserved the right to at any time amend, alter or repeal the laws relating to The National Home for Disabled Volunteer Soldiers. This eleemosynary corporation, as it has already been denominated by this court, Renner v. Bennett, 21 Ohio St., 442, therefore remains in all respects, as it was originally, an institution of the government of the United States for the administration of a charity of the United States. It continues to be, as it always has been, maintained by the funds of the government of- the United States. All of the property held in its name was paid for by the United States; and that it is performing an appropriate and constitutional function of the general government nobody doubts; for at this time it is too late to question the power of congress to create corporations for such purposes. Osborn v. Bank of United States, 9 Wheat., 738, 859, 872; McCulloch v. Maryland, 4 Wheat., 316, 411, 422; Luxton v. North River Bridge Co., 153 U. S., 529. But, as was remarked by Chief Justice Marshall, in Osborn v. Bank of United States, 9 Wheat., 860, this corporation is not a private corporation but “a public corporation created for public and national purposes.” It is “an instrument which is ‘necessary and proper for carrying into effect the powers vested in the, government of the United States.’ It is not an instrument which the government found ready made, and has supposed to be adapted for its purposes; but one which was created in the form in which it now appears, for national purposes only.” A suit against a public corporation having no other powers than the performance of a function of the government and accomplishing no other object, is plainly a suit against the government and its property, although nominally it is a suit against the corporation only. This principle was applied by this court in Finch v. Board of Education, 30 Ohio St., 37, 47, in which it was held that in the absence of a statute creating the liability, a board of education, which was incorporated by an act of the general assembly, passed March 9, 1849, was not liable in its corporate capacity for damages resulting from its negligence in erecting and maintaining a school building. It was held that the defendant was “a public agent employed in administering the common school system of the state,” and that there is no principle of the common law by which the action could be supported.

In Board of Commissioners v. Mighels, 7 Ohio St., 109, a case in which the liability for tort of mere governmental agencies, in the absence of express consent of the sovereignty, is denied, Brinkerhoff, J., clearly distinguished municipal corporations and counties as follows:

“Municipal corporations proper are called into existence, either at the direct solicitation or by the free consent of the people who compose them.
“Counties are local subdivisions of a state, created by the sovereign power of the state, of its own sovereign will, without the particular solicitation, consent, or concurrent action of the people who inhabit them. The former organization is asked for, or at least assented to by the peopie it embraces; the latter is superimposed by a sovereign and paramount authority.
“A municipal corporation proper is created mainly for the interest, advantage and convenience of the locality and its people; a county organization is created almost exclusively with a view to the policy of the state at large, for purposes of political organization and civil administration, in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport, and especially for the general administration of justice. With scarcely an exception, all the powers and functions of the county organization have a direct and exclusive reference to the general policy of the state, and are, in fact, but a branch of the general administration of that policy.”

This is exactly the distinction which we make here between the defendant in this case and municipal or commercial corporations.

The general doctrine in regard to the liability of the government for torts is thus stated: “Even the state or the general government may be guilty of individual wrongs; for, while each is a sovereignty, it is a corporation also, and as such capable of doing wrongful acts. The difficulty here is with the remedy, not with the right. No sovereignty is subject to suits, except with its own consent. But either this consent is given by general law, or some tribunal is established with power to hear all just claims. Or if neither of these is done, the tort remains; and it is always to be presumed that the legislative authority will make the proper provision for redress when its attention is directed to the injury.” Cooley on Torts, 122-123. The United States has consented to be sued on its contracts, either in the court of claims, or in a circuit or district court of the United States; but it has not yet consented to be liable to actions for torts. Belknap v. Schild, 161 U. S., 17. Therefore, we are not persuaded by the argument that the power conferred upon this corporation, of suing and being sued both at law and in equity, must be construed as a consent by congress that this particular governmental agency may be sued upon any cause of action, whether sounding in contract or in tort. On the contrary, we are constrained, upon all considerations, to regard this as imposing the power and liability to sue and be sued in respect to such matters only as are within the scope of the other corporate powers of the defendant. The National Home for Disabled Soldiers was not given the right to commit wrongs upon individuals. It was not contemplated that it would do so. It was created and is perpetuated by the federal government for a very different purpose. Hence, it can not be inferred that congress meant to impose a liability upon this corporation so unusual, so different from its general policy and so different from the liabilities imposed on other public agencies.

The defendant has no corporate fund, nor any property applicable to the payment of a judgment in such an action as this. A judgment could not be satisfiéd except by seizing upon the property and funds supplied by the general government for the purpose for which the defendant was created, and without which it must cease to exist. Execution against the defendant'would not only bring on conflict between the state and federal governments, but if allowed, it would tend to the destruction, of this splendid national charity. It is no answer to these considerations to say that a judgment in damages for the tort would be an ascertained basis for an appeal to congress for satisfaction; for, as is said by the eminent author already quoted, it is to be presumed that the sovereign is always ready and willing to do justice, and a judgment in the courts, when unauthorized by the government, would not only be altogether vanity, an empty result, but would be an indecorous assumption of the right to advise the general government as to its duty, and of the right to make the judgment the basis of a demand precluding inquiry, by the general government as to its ultimate liability.' The courts can be better employed than in doing a useless thing.

We, therefore, conclude that the right to sue The National Home for Disabled Volunteer Soldiers for a tort was never contemplated nor conferred. In Finch v. Board of Education, supra, this court so construed the power “to sue and be sued” contained in the charter of the board of education. Likewise in Board of Commissioners v. Mighels, 7 Ohio St., 109, 114-117.

The judgment of the circuit is

!Affirmed.

Burket, C. J., Shauck, Price and Crew, JJ., concur.