text:
    The Columbus Railway Co. v. Ritter.

      Charge to jury — When free from error hut fails to cover all questions — Sitch failure -not ground for reversal, when — Sec. 529S, Rev. Stat. — Effective only as to errors in the charge — Review of errors — Court procedure.

    1. Where the charge of the court is free from error prejudicial to the party excepting thereto, but fails to cover all the questions involved in the case, such failure is not a ground for reversal, unless it was called to the attention of the court, and further instructions requested and refused, provided the jury is not misled by the charge as given.
    2. A general exception to the charge of the court as now permitted by Section 5298, Revised Statutes, is effectual only as to errors of law existing in the charge as given, and does not bring in review on error, an omission or failure to give further proper instructions.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Franklin county.
    The defendant in error, by the averments of her petition filed in the court of common pleas, charged the plaintiff in error with negligence in operating one of its cars, on which she was a passenger, which negligence inflicted upon her serious and permanent injuries. As the particular facts, she alleged that on January 7, 1900, she boarded a car of the defendant railway company in tlie western part of the city of Columbus, to ride to her home in the eastern part of the city; and that as she reached her destination at the corner of Cleveland avenue and Grove street, the car stopped, and that she arose to leave the car, when the conductor gave the signal to start; whereupon the motorman turned on the current which sent the car forward with a sudden start, throwing her toward the rear where she fell, striking her knee on the floor, and breaking the patella, or knee-cap, on account of which she has become a permanent cripple. It was further alleged, that in so starting the car before plaintiff had time to alight therefrom, and throwing her to the floor, the employes and servants of the defendant were extremely careless, negligent and reckless.
    The answer of the railway company admitted its corporate existence and capacity, and that it operated-the line of railroad and the car at the time of the injury, as ¿lleged in the petition; that plaintiff was a passenger on the car at the time and place stated, and that she had paid the usual fare; and that as the car approached Grove street the conductor gave the usual signal by bell for stopping said car, and that it was .accordingly stopped; that plaintiff fell to the floor in said car and received some injuries, the exact mature and extent of which defendant does not know. .All the other allegations of the petition were denied. The answer also alleged that whatever injuries the plaintiff received were the result of her own carelessness, negligence and want of care. The latter part of the answer was denied by a reply.
    After the arguments of counsel the only charge given to the jury is the following: “Gentlemen of the Jury: You are the sole judges of the facts in this case. From the facts testified to under the instructions of the court you will bring in your verdict. Before the plaintiff can recover in this case she must prove to you by a preponderance of the evidence that she sustained the injuries alleged in the petition as therein alleged; and that said injuries were caused by the negligence of the defendant and without contributory negligence on the part of the plaintiff. Otherwise your verdict must be for the defendant. If you find for the plaintiff you can find in her favor for such amount as the evidence warrants not to exceed the amount claimed in the petition, to-wit, the sum of ■$10,000.00. If you find for the defendant you will simply say in your verdict, you find for the defendant. When you have all agreed upon a verdict have your foreman sign it and return it to court.” And thereupon counsel for defendant excepted generally to the charge as given.
    The jury, after due deliberation, returned into court their verdict in writing, which, with the caption omitted, is in the words and figures following, to-wit: “No. 41,079. Civil action. Yerdict for plaintiff. We, the jury, being duly impaneled and sworn, find the issues in this case in favor of the plaintiff, and assess the amount due to the plaintiff, from the defendant, at the sum of $5,000.00. P: J. Lofland, Foreman.”
    No further charge was requested by either party. On consideration of defendant’s motion for new trial, the.court found the verdict excessive in the amount of $1,000.00, whereupon the plaintiff entered a remititur of said sum. The motion for a new trial was then overruled, and judgment rendered for $4,000.00.
    The circuit court affirmed this judgment, and error is prosecuted in this Court to reverse both judgments. It is contended in this Court:

      1. That the court gave uo charge.
    2. If the remarks of the court do constitute a. charge, the same is grossly insufficient and does not cover the issues in the case.

      Messrs. Booth, Keating, Peters & Butler, for plaintiff in error, cited and commented upon the following authorities:
    Section 5190, Rev. Stat.; Taft v. Wildman, 15 Ohio, 123; Jones v. State, 20 Ohio, 34; Harrington v. State, 19 Ohio St., 268; Railroad Co. v. Picksley, 24 Ohio St., 654; Parmlee v. Adolph, 28 Ohio St., 10; Coal Co. v. Estievenard, 53 Ohio St., 44; Burns v. Oliphant, 78 Ia., 458; Kinkead’s Prac., 422; 2 Ency. Pl. & Prac., 153; Dassler v. Wisley, 32 Mo., 498; Keatley v. Railroad Co., 94 Ia., 685; Fitzgerald v. McCarty, 55 Ia., 702; Gorman v. Railway Co., 78 Ia., 509; Barkley v. Tarrant County, 53 Tex., 251; Railway Co. v. Tankersley, 63 Tex., 57; Railway Co. v. Lee, 90 Tenn., 570; Remmler v. Shenuit, 15 Mo. App., 192; Proctor v. Loomis, 35 Mo. App., 482; Fleischmann v. Miller, 38 Mo. App., 177; Grant v. Railway Co., 25 Mo. App., 227; 1 Thompson’s Com. on Law of Neg., Sec. 206;, Kerwhacker v. Railroad Co., 3 Ohio St., 188; Barholt v. Wright, 45 Ohio St., 182; Kountz v. Brown, 55 Ky., 577; Coal Co. v. Sneddon, 98 Ky., 684; Telegraph Co. v. Eyser, 2 Colo., 141; Goddard v. Railway Co., 10 Am. Law Reg. (N. S.), 17; Hopkins v. Railroad Co., 36 N. H., 9; Caldwell v. Steamboat Co., 47 N. Y., 283; Railroad Co. v. Scurr, 59 Miss., 456; Railroad Co. v. Ritter’s Admr., 2 Ky. Law Rep., 385; Rose v. Story,. 1 Pa. St., 190; Harmon v. Donohue, 153 Mo., 275; Gusdorff v. Duncan, 50 A., 574; Hawes v. Stock-Yards Co., 103 Mo., 60; Flynt v. Railway Co., 38 Mo. App., 94; Wilson v. Wheeling, 19 W. Va., 349; Keightlinger
      v. Egan, 65 Ill., 238; Delphi v. Lowery, 74 Ind., 527; Railway Co. v. Vandever, 36 Pa. St., 298; Insurance Co. v. Sherlock, 25 Ohio St., 50.

      Mr. Thomas E. Powell, for defendant in error, cited - and commented upon the following authorities:
    Section 5298, Rev. Stat.; Pennock v. Dialogue, 2 Pet. (U. S.), 1; Brigham v. Wentworth, 11 Cush. (Mass.), 123; Van Akin v. Caler, 48 Barb. (N. Y.), 58; Stedman v. Transportation Co., 48 Barb. (N. Y), 97; Gardner v. Gooch, 48 Me., 487; Insurance Co. v. Brim, 111 Ind., 281; Fox v. Fox, 96 Pa. St., 60; Burkholder v. Stahl, 58 Pa. St., 371; Wilson v. Railway Co., 93 Ind., 287; Board of Commissioners v. Legg, 110 Ind., 479; Poullain v. Poullain, 76 Ga., 249; Du Souchet v. Dutcher, 113 Ind., 249; Fitzgerald, Trustee, v. Goff, 99 Ind., 28; Emery v. Vinall, 26 Me., 295; Dows v. Rush, 28 Barb., 157; Caveny v. Neely, 43 S. C., 70; Quirk v. Elevator Co., 126 Mo., 279; Railway Co. v. Arispe, 81 Tex., 517; Orr v. Garabold,. 85 Ga., 373; Johnson v. Railway Co., 96 Mo., 341; Campbell v. Warner, 24 S. W. Rep., 703; Railway Co. v. Waldo, 26 S. W. Rep., 1004; Railway Co. v. Pendery, 27 S. W. Rep., 213; Rozar v. Burns, 13 Ga., 34; Hatch v. Spearin, 11 Me., 354; Hall v. Weir, 1 Allen (Mass.), 261; Burns v. Sutherland, 7 Pa. St., 103; Farquhar v. Dallas, 20 Tex., 200; Davis v. Elliott, 15 Gray (Mass.), 90; Parsons v. Brown, 15 Barb. (N. Y.), 590; Bain v. Doran,. 54 Pa. St., 124; Moore v. Ross, 11 N. H., 547; Castle v. Bullard, 23 How. (U. S.), 189; State v. Straw, 33 Me., 554; Express Co. v. Kountze, 8 Wall. (U. S.), 342; Congess, etc., Co. v. Edgar, 99 U. S., 645; Mutual Life Ins. Co. v. Snyder, 93 U. S., 393; Hall v. Weare, 92 U. S., 728; Thompson’s Charging the Jury, 112; Siegle v. Louderbaugh, 5 Pa. St., 490; Herbert v. Huie, 1 Ala., 18; United States v. Fourteen Packages, 1 Gilp. (U. S.), 235; Seabury v. Field, 1 McAll. (U. S.), 67; Taft v. Wildman, 15 Ohio, 123; Jones v. State, 20 Ohio, 34; Schryver v. Hawkes, 22 Ohio St., 309; Smith v. Railway Co., 23 Ohio St., 10; Doll v. State, 45 Ohio St., 452; Mill Co. v. Corrigan, 46 Ohio St., 294; Wright v. Railroad Co., 6 Circ. Dec., 159; 9 C. C. R., 503; Turnpike Co. v. Hester, 5 Circ. Dec., 690; 12 C. C. R., 350; Pennsylvania Co. v. Rossman, 7 Circ. Dec., 119; 13 C. C. R., 111; Railway Co. v. Richerson, 10 Circ. Dec., 326; 19 C. C. R., 386.
   Price, J.

We gather from the record of this case, and the arguments of counsel, that the trial in the lower court ran its course with uncommon smoothness and freedom from controversies. There were no disputes over the introduction of the evidence, and we assume that the arguments of counsel were orderly and according to the rules of decorum. It would seem that the atmosphere of the trial was so placid and serene, that the court was lulled into a degree of indifference as to what, if anything, should be said to the jury. Neither party requested further instructions as to the law, and counsel for the defendant railway company were content to enter a general exception to the charge, which charge is the sole subject of review in this Court. It is claimed here for a reversal of the judgments of the lower courts, that, (1) No charge was given to the jury, the remarks of the court not amounting to a charge in the legal sense; (2) If called a charge, that it was insufficient, and failed to properly cover the issues joined in the case.

To this it is answered by defendant in error, that owing to the simple issue made in the pleadings, the court complied with the legal demand in such cases; and further, if the railway company desired further instructions, it was incumbent- upon it to request - them. Otherwise they were waived. So we have the contention of parties.

In the very brief message submitted to the jury, we find one manifest mistake. The court erroneously placed upon the plaintiff below, the burden of disproving contributory negligence charged in the answer, as a part of her case in chief. Such has never been the law in this state. But plaintiff in error was not prejudiced by this mistake, and does not complain of it here.

1. Did the court charge the jury?

Our present statutory provision on the duty of the court was first enacted May 13, 1868 (see 65 O. L., 190), and its language is: “The court, after the argument is concluded, shall immediately, and before proceeding with other business, charge the jury,” etc. This rule is now found in the seventh division of Section 5190, Revised Statutes.

The legislature did not attempt by this provision to define the scope or subject-matter of the court’s charge, but rather to cure a then prevalent habit in some jurisdictions, of taking up other business after the arguments of counsel, and before finally submitting the case to the jury.

It is well at this point to recall the very simple and narrow issue between these parties in the trial court, for it has much to do with our conclusions. The pleadings brought the issues into a very narrow compass. The gravamen of the plaintiff’s complaint, as stated in her petition, was and is, that she was a passenger in the car of the company on her way home from the western part of the city, and that as the car approached the point of her destination she so signified to the conductor and the car stopped; thereupon she arose and was proceeding to alight, and that before she reached the door, the motorman, without any warning to her, suddenly started the car with a jerk, which threw her to the floor, inflicting the injuries set out fully in her petition, with her special and general damages. The answer of the company admitted that it was controlling and operating this car at the time and place alleged and that plaintiff became and was a passenger thereon; that the conductor signaled for the car to stop when it reached her destination and that it stopped; that she fell to the floor in said car and received some injuries, the extent of which defendant did not know.

Therefore, the material facts put in issue by the answer, were that the plaintiff was proceeding toward the door of the car to alight therefrom when the motorman, without warning to her, suddenly started the car with a jerk, throwing her to the floor, thereby so injuring her that she became a permanent cripple and sustained certain special and general damages.

However, it is argued for plaintiff in error, that the jury should have been instructed upon the law of exemplary damages, which instruction became necessary because of an averment in the petition, that the “employes of the company were extremely careless, negligent and reckless in starting said car before plaintiff had alighted.” True, these words are found in the closing paragraph of the petition; but all the facts making a cause of action had been previously set out, and characterizing such acts as, “extremely careless, negligent and reckless” is but the expression of the plaintiff’s opinion as to their nature, and nc case was stated in the petition for exemplary damages.

Again, while the answer charged plaintiff with contributory negligence, we are not advised that any evidence was offered by the railway company on that point. Neither in the brief, or oral argument of counsel for plaintiff in error, has any claim been made that there was any evidence to sustain the charge of contributory negligence. Therefore the issue was very simple and did not call for an extended charge of the court. It would have been far better if the court had given more dutiful attention to the case, and have explained the issue to the jury, and have defined what is negligence, and what ordinary care, as well as to have given rules by which to consider and apply the evidence. But this was not very fully done.

On this subject, we are cited to the rule laid down by this Court in several cases, to the effect, that it is the duty of the court to give instructions pertinent to issues and facts in the case on trial, instead of laying down mere abstract propositions of law. This duty is defined in the second section of the syllabus in Parmlee v. Adolph, 28 Ohio St., 10; and in Coal Co. v. Estievenard, 53 Ohio St., 43. Earlier cases than these favored the same rule; among them is Railroad Co. v. Picksley, 24 Ohio St., 654. In the latter case the trial court had given sundry special instructions to the jury, before argument, at the request of the railroad company. After the argument, the court again charged the jury, which charge consisted of long extracts from opinions of this Court in various cases before it, involving questions of negligence. The charge was held erroneoxis, among other reasons, because it was calculated to deprive the defendant of the benefit of the special instructions given at the close of the testimony.

In the. case of Coal Co. v. Estievenard, supra, this Court restated the rule more at large in the sixth paragraph of the syllabus. The action was to recover for a personal injury received in a coal mine, through the alleged negligence of the company. The court did enter upon a general charge of considerable length, a part of which was sound in itself, but it did not go far enough to meet the facts of the case. See opinion on page 51. Counsel for the coal company requested the court to give twelve special charges, claimed to be relative to the facts in that case, which were not given or adopted in the general charge. As shown on page 59, this Court considered the general charge as dealing with generalities rather than the facts of the case as claimed by the parties. Contributory negligence was also set up and strongly relied on in that case.

We think the above cases give us but little, if any, light upon the contention here. We do not intend to modify or recede from Avhat this Court has said in the cases cited; but how do they aid us now? The trial court in this case cannot be successfully accused of laying doAvn abstract propositions of law, or dealing in generalities; but did the court say enough to avoid reversible error?

2. With this question occurs another: What Avas the duty of counsel at the close of the court’s remarks?

Without discussing the question, avIiether the court is required of its own motion to charge the jury, we believe the rule thoroughly settled in Ohio, that if the charge as given is unobjectionable, it is no ground for error that the court failed to give other instructions which might properly have been given, unless. such further, or other instructions he requested and refused. This view was expressed by this Court in Jones v. State, 20 Ohio, 34; and in Smith v. Railway Co., 23 Ohio St., 10, the same rule is maintained. While it is true, the case of Jones v. State, arose under the old practice, we find the case of Smith v. Railway Co., just noted, was decided by this Court at the December term in 1872, and of course after the enactment of the provision now known as paragraph seven of Section 5190, Revised Statutes. In the latter case, the trial court gave a very brief charge and which did not embrace all phases of the controversy.

In commenting upon it, Mcllvaine, J., on page 15, says: “That the court, in this case, might have given the jury further instructions in relation to the question, may be conceded; but inasmuch as those given were unobjectionable, and the defendant did not specially request others, we must hold that it has no ground of complaint in this respect.” At the same term of this Court, the case of Schryver v. Hawkes & Bierce, 22 Ohio St., 309, was decided. In the latter case, the second section of the syllabus thus states the law: “Where the charge of the court is correct so far as it goes, but omits to state a proposition of law involved in the case, but to which its attention was not called, otherwise than by a general exception to the charge, the omission is not error for which the judgment will be reversed, provided the jury are not misled by the charge.”

This proposition is sanctioned in Pretzinger v. Pretzinger, 45 Ohio St., 452, and in Rolling Mill Co. v. Corrigan, 46 Ohio St., 283. We see by these authorities, the duty of the court, and also the duty of counsel in the trial of a cause, and this rule of duty is as imperative upon one as upon the other. The court may neglect or omit to fully instruct upon some important issue or issues in the case, and in that event, comes the duty of counsel, in order that full and complete .justice be done, to call the attention of the court to such omission and request the further charge desired. In this case, nothing was said by counsel, aside from a general exception.

Before the amendment of Section 5298, Revised Statutes, passed April 25, 1898, a general exception to charge, partly sound and partly unsound, was of no avail. It was required of a party, that the exception point out the faulty or unsound parts, thus bringing them specifically before the court. By the amendment referred to, it is provided: “And a general exception taken to any charge of any court to a jury, shall apply to any and all errors of law which exist in such charge that are material and prejudicial to the substantial rights of the party excepting.”

This form of exception does not reach an omission or failure to give instructions, but only to errors of law existing in the charge as given. We have found no error existing in the charge as given by the trial court which was prejudicial to plaintiff in error.

It follows from all these considerations, that there is no reversible error in the record. We might say in conclusion that among the many reported cases decided by this Court, we have found no such judicial production as has been furnished in this case. Indeed it is unique almost beyond a parallel. We do not endorse it as a model, and its imitation in other ■cases might be exceedingly dangerous.

Judgment affirmed.

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


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The City of Troy v. Brady, by His Next Friend.

      Action against municipality for damages — From alleged defect in bridge — Special finding that bridge was safe — Entitles to judgment though general verdict to contrary — Court procedure.

    In the trial of an action to recover from a municipality damages sustained by reason of an alleged defect in a bridge, a special finding by the jury that at the time of the accident the bridge was in a reasonably safe condition for travel in the ordinary mode entitles it to a judgment, notwithstanding a general verdict to the contrary.
    (Decided October 28, 1902.)
    Error to the Circuit Court of Miami county.
    The defendant in error brought suit in the court. of common pleas to recover from the city damages to compensate him for injuries sustained by reason of the defective bridge maintained by the city upon one of its streets crossing the Miami canal. Plaintiff, at the time of receiving his injury, was eight years of age, his injury consisting of the loss of a leg received by riding upon a swinging bridge, for pleasure, as the bridge was closing after having opened to permit the passage of a canal boat. The allegations of neglect contained in his petition are as follows :
    “Said city did carelessly and negligently make and leave at the extremity of the approach thereto and at either side of the approach thereto, an opening so that when the said bridge swung into the arc of the circle connecting it with the said approach, it formed an aperture in the form of a wedge in such a manner that any object, accidentally or otherwise passing over the end of said bridge, and dropping down a few inches over the said approach at the side and at the extremity thereto, would necessarily be caught between the end of said bridge and said approach, with great force and violence. Plaintiff further complains, of the said defendant’s negligence and says that just prior to the date of the injury hereinafter complained of, the said city of Troy negligently permitted said swing bridge to become so badly out of repair that although it was originally intended and purposed that the same would swing open upon its axis or balance upon the first ‘bump’ of the boat desiring to pass through, that just prior to and at the time of the accident hereinafter complained of the said defendant permitted the said bridge to become so badly out of repair that it required three or four hard bumps of the canal boat against the same in order to force the same open; all of which the said defendant knew or with reasonable diligence might have known.”
    The answer denied negligence on the part of the-city, and alleged that the injuries of the plaintiff were due wholly to his own recklessness. The cause was, tried to a jury, and a general verdict returned in favor of the plaintiff. With the general verdict, the jury returned special findings in answer .to interrogatories, among them, the following interrogatory and answer :• “Question. Was the bridge, at the time of the accident, in a reasonably safe condition for travel in the-ordinary mode? Answer. Yes.”
    Counsel for the city moved the court for a judgment in its favor upon the special findings, notwithstanding the general verdict to the contrary. This motion was overruled, and a judgment was entered against the city upon the general verdict. This judgment was affirmed by the circuit court.

      Mr. Leonard H. Shipman, city solicitor, and Mr. William H. Gilbert, for plaintiff in error, cited and commented upon the following authorities:
    2 Dillon Mun. Corp., Sec. 1024; Chase v. Cleveland, 44 Ohio St., 513; Village v. Gallager, 52 Ohio St., 183; Elliott on Roads and Streets, Sec. 56; 2 Dillon’s Mun. Corp., Sec. 1019; Secs. 5201, 5202, Rev. Stat.; Shaffer v. Sandusky, 33 Ohio St., 247; Village of Middleport v. Taylor, 1 Circ. Dec., 534; 2 C. C. R., 366; Railroad Co. v. Schwidling, 110 Pa. St., 258; Barnes v. Railway Co., 49 Am. St. Rep., 415; Stinson v. City of Gardner, 42 Me., 248; Bridge Co. v. Jackson, 114 Pa. St., 321; Canal Co. v. Murphy, 9 Bush (Ky.), 522; Harriman v. Railway Co., 45 Ohio St., 11; Hatfield v. Roper, 21 Wend., 615; Mangam v. Railroad Co., 38 N. Y., 455; Railway Co. v. Snyder, 18 Ohio St., 400; Mahnken v. Board, 5 Am. Neg. Rep., 192; Stout v. Railway Co., 17 Wall., 657; Frost v. Railroad Co., 64 N. H., 220; Daniels v. Railroad Co., 154 Mass., 349; Turess v. Railroad Co., 11 Am. & Eng. R. R. Ca., 297; Walsh v. Railroad Co., 145 N. Y., 301; Bates v. Railway Co., 90 Tenn., 36; Railroad Co. v. Reich, 61 N. J. L., 635; McEachren v. Railroad Co., 150 Mass., 515; Vanderbeck v. Headry, 34 N. J. L., 467, Peters v. Bowman, 115 Cal., 345; Kaumeier v. Railway Co., 40 L. R. A., 385; Gay v. Railway Co., 21 L. R. A., 448.

      Mr. J. A. Davy; Mr. A. B. Campbell; Mr. L. E. St. John; Mr. T. B. Kyle and Mr. George S. Long, for defendant in error, cited and commented upon the following authorities:

      Jansen v. Atchison, 16 Kan., 358; Eudora v. Miller, 30 Kan., 494; 9 Am. & Eng. Ency. Law (1 ed.), 379; 2 Am. & Eng. Ency. Law, 559; Chase v. Cleveland, 44 Ohio St., 513; Village v. Kallagher, 52 Ohio St., 183; Elliott on Roads and Streets, Sec. 56; Dayton v. Pease, 4 Ohio St., 80; 4 Field’s Lawyers’ Briefs, Secs. 687, 693; Harriman v. Railway Co., 45 Ohio St., 11; Cleveland v. King, 32 U. S., 295; Commissioners v. Railroad Co., 45 Ohio St., 401; State v. Commissioners, 49 Ohio St., 301; Moody v. St. Mary’s, 8 Circ. Dec., 341; 15 C. C. R., 446; Piqua v. Geist, 59 Ohio St., 163; 2 Am. Neg. Rep., 500; Railroad Co. v. Snyder, 18 Ohio St., 400; 4 Am. & Eng. Ency. Law, 43; Schmidt v. Railroad Co., 23 Wis., 186; Maugan v. Railroad Co., 38 N. Y., 455; Hatfield v. Roper, 21 Wend., 615; 34 Am. Dec., 273; Stout v. Railroad Co., 17 Wall., 657; 27 Am. & Eng. Ency. Law (1 ed.), 344; 5 Am. Neg. Rep., 192; Sec. 2640, Rev. Stat.
   Shauck, J.

Such consideration as was given to the evidence in this case, by the jury, in determining upon its general verdict, must have been rather to its volume than to its probative effect. The difficulty found in opening the bridge by pressure from passing boats, whether caused by the manner in which the bridge was constructed or the condition of its operating device, was neither the proximate nor a contributing cause of -the injury. Nor did the evidence show how the bridge could have been constructed so as to avoid the injury, in view of the circumstances, if it were the duty of the city to construct and maintain it for other purposes than those of ordinary travel. But however insufficient the evidence may have been to show negligence, it was submitted to the jury. That it failed to show a default in the performance of the city’s duty is conclusively established by the special finding that at the time of the accident the bridge was in a reasonably safe condition for travel in the ordinary mode.

The duty with regard to which the city is alleged to have been in default is imposed by Section 2640, Revised Statutes. It is to cause streets “to be kept open and in repair, and free from nuisance.” The special finding is, in substance, that this duty was performed by the city in constructing and maintaining the bridge. When a bridge, and a street of which it is a part, are in a reasonably safe condition for travel in the ordinary mode, they are free from nuisance. Village of Cardington v. Frederick’s Admr., 46 Ohio St., 442; Zanesville v. Fannan, 53 Ohio St., 605; Circleville v. Sohn, 59 Ohio St., 285; Cincinnati v. Fleischer, Admr., 63 Ohio St., 229. The statute indicates the purpose in this regard for which a municipality may exercise the power of taxation. It is not liable as an insurer of those who go upon its streets. These familiar views were clearly expressed in the instructions which the trial judge gave to the jury in the present case. Why they were not allowed a controlling effect in disposing of the motion for a judgment does not appear. It would seem obvious that taxes should not be levied by a city for the payment of a judgment rendered against it without its default.

The plaintiff having failed to sustain his allegations of negligence against the city, the case presents no question of contributory negligence, nor any consideration of the degree of care which may be exacted from one of his age.

Judgments of the circuit and common pleas courts reversed, and judgment for plaintiff in error.

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


author: Davis, J.

text:
    Jacobs, a Minor, by Jacobs, His Next Friend, v. The Fuller & Hutsinpiller Co.

      Employer engaged boy under age — To manufacture furniture— Employer furnishes machinery which toas safe under proper instruction — Employe under age and injured by machine— Defense of independent contract will not avail, when — Defense that contract' invalid under sections 6986-1 and 6986-2 does not avail — Charge to jury concerning such employment —Negligence of employer — Law of contracts — Court procedure.

    1. Where the defendant employed a third party to manufacture furniture for it, furnishing all the materials, tools and machinery for that purpose, in which was a machine which was safe to operate under proper instructions, and dangerous to operate without instruction as to the manner of operating it, and when it is claimed that the plaintiff was injured by reason of neglect to notify him of the dangerous character of the machine and neglect to give him instructions as to operating it, the defense that the plaintiff was an employe of an independent contractor will not avail the defendant, because it is a case in which, under the circumstances of the employment, a resulting injury might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care should be omitted in the course of its employment. Railroad Co. v. Morey, 47 Ohio St., 207, and Covington & Cincinnati Bridge Co. v. Steinbrock, 61 Ohio St., 215, approved and followed.
    2. In such case, it is error to charge the jury that the plaintiff, being under sixteen years of age, and having been employed in violation of Sections 6986-1 and 6986-2, Revised Statutes, which provide that the employment of a child under sixteen years of age by any person, firm or corporation in this state, at any employment whereby its life or limb may be endangered, etc., shall be deemed guilty of a misdemeanor and shall be fined or imprisoned, that fact may be considered by the jury, as a circumstance, in connection with other evidence in the case, as bearing upon the question of the negligence of the employer in causing the injury. Meek v. Pennsylvania Co., 38 Ohio St., 632, and Davis v. Guarnieri, 45 Ohio St., 470, distinguished.
    (Decided October 28, 1902.)

      Error to tlie Circuit Court of Gallia' county.
    It was alleged in the petition of the plaintiff that on or about March 11, 1897, the defendant, by and through one of its foremen and agents, employed the plaintiff and put him to work upon and about a certain dangerous machine then in use in the factory of the defendant; that this machine was known as a jointer or hand planer, and was operated by steam power; that the defendant was in duty bound to know, and did know, the dangerous and hazardous character of the machine and the risk and danger incident to the removal of pieces of wood in the operation of the machine, and that it knew this both before and at the time of the employment of the plaintiff. Plaintiff alleged that he was a minor under the age of fifteen years at the time of his employment; that he had never worked upon machines or machinery of any kind, and that he was wholly unacquainted with the operation of the particular machine mentioned here; that the defendant, at the time of his employment knew of his youth and inexperience, and that on said date, that being the first day he had worked' for the defendant, the defendant negligently, careléssly, and unlawfully put the plaintiff to work upon and about said dangerous and hazardous machine without notifying the plaintiff in any way or manner as to the dangerous and hazardous character of said machine, or of the danger and peril incident to the performance of the duty assigned him, as aforesaid,- and without giving him any instructions whatever as to how he should do and perform said duty assigned to him. The plaintiff also alleges that on the afternoon of said ■day, while at his duty about the said machine, and which he had been ordered and directed to do by the defendant, by reason of tbe careless, negligent and unlawful acts and omissions of the defendant, as aforesaid, and without any fault on his part, his right hand was caught in and upon the revolving knives or bits of said machine, and cut and mangled so that the amputation of his right arm became necessary. The answer was a general denial. .On the trial of the action the jury returned a verdict for the plaintiff in the sum of one thousand eight hundred and seventy-five dollars, and also returned special findings. Motion for new trial was made and overruled, and judgment rendered upon the verdict. Bill of exceptions was taken, petition in error filed in the circuit court, and on hearing in that court the judgment of the court of common pleas was reversed for error in charging the jury as follows, to-wit:
    “To constitute the said Orion L. Eager, an independent contractor, it must appear in the first place that he had a contract for a job; that is, that he had a contract for the manufacture of some definite number of pieces of furniture of the kind he was engaged in making. He must also have hired, controlled time, and paid his own hands. He must also have had entire control over the mode and manner of the manufacture of said furniture. He must also have had a contract with the defendant for the use of its machinery for a definite time, or for such time as was necessary to complete the job he had contracted to do. If any of these elements are wanting the claim that he was' an independent contractor must fail.”

      Mr. A. D. Alcorn; Mr. E. D. Davis; Mr. R. M. Switzer and Mr. C. W. White, for plaintiff in error.

      Mr. Hollis G. Johnston; Mr. Roscoe J. Maude and Messrs. Grosvenor, Jones & Worstel, for defendant in. error.
   Davis, J.

Whether the instruction given by the court to the jury in relation to an independent contractor was right or wrong, is, in our opinion, immaterial in laAv; because the defense that the plaintiff was an employe of an independent contractor is not available to the defendant under the facts of this case. Conceding that Kiger was an independent contractor, yet it is an undisputed fact that, under his agreement with the defendant, he was to perform his services with material and machinery which were furnished by the defendant, and that with these was the dangerous machine which injured the plaintiff. That it was dangerous when operated by one Avho had not been properly instructed, is specially found by the jury; and indeed that fact stands out distinctly all through the evidence contained in the record. So tii at this case, so far as the defense of an independent contract is concerned, comes directly within the doctrine of this court as announced in Railroad Co. v. Morey, 47 Ohio St., 207, and Covington, etc., Bridge Co. v. Steinbrock, 61 Ohio St., 215. It is a case in Avhich, under the circumstances shown, “a resulting injury * * * might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance.”

But Avhile we cannot affirm the judgment of the circuit court upon the reason assigned by that court, we nevertheless are of the opinion that the judgment ought to be affirmed upon an altogether different ground which appears upon the record. As already intimated, the only question which was properly raised by the pleadings and the evidence in this case was Avhether the defendant, having knowledge of the youth and inexperience of the plaintiff, “negligently, carelessty and unlawfully put the plaintiff to work upon and about said dangerous and hazardous machine * * without notifying the plaintiff in any manner as to the dangerous and hazardous character of said machine, * * * and without giving him any instructions whatever as to how he should do and perform said duty assigned him,” whereby the plaintiff was injured. The trial judge in instructing the jury in regard to this issue, turned aside to say that: “In fact the employment of children under the age of sixteen years, at any employment whereby life or limb is endangered, is prohibited by statute in this state, and any person, firm or corporation that willfully permits such children to be so employed is deemed guilty of a misdemeanor. But while this statute makes it unlawful to employ children under the age of sixteen .years at any employment whereby life or limb is endangered, the mere fact of such employment in violation of the statute does not of itself warrant a recovery against the employers, but it is only a circumstance to be considered by the jury in connection with the other evidence in the case as bearing upon the question of the negligence of the employer in causing the injury. As applied to this case the statute made it the duty of the defendant, if it did not know plaintiff’s age, to use due care and caution to ascertain his age, and if it failed to do so, and employed plaintiff while within the prohibited age in a service tlia,t was hazardous to his life and limb, knowing him to be under the age of sixteen .years, or when by the exercise of due care and .caution it could have ascertained that he was under that age, it ds a fact or circumstance to be considered by you in determining the question of the alleged negligence and other wrongful conduct of defendant in causing the injury to plaintiff.”

This was clearly erroneous and prejudicial, because it submitted to the jury, as evidence of negligence, a matter which was not competent as evidence in a case such as this. Buswell on Pers. Injuries, Sec. 112. It was not charged in the petition, and could not be claimed, that the plaintiff’s injury resulted in any direct or immediate way from, an illegal employment of the plaintiff; but it was claimed that, being employed, the employer neglected his legal duty to give proper instructions as to the use of a dangerous machine. Therefore, whether the statute had been violated or not, the suggestion of that matter by the trial judge was altogether irrelevant, and could not be otherwise than prejudicial. It was stated and restated that “the fact of such employment in violation of the statute * * * is a circumstance to be considered by the jury in connection with other evidence in the case as bearing upon the question of the negligence of the employer in causing the injury.” This case is not at all like the cases of Meek v. Pennsylvania Co., 38 Ohio St., 632, and Davis v. Guarnieri, 45 Ohio St., 470. In each of those cases the negligent act complained of was the very act which was made unlawful by ordinance or by statute; and for that reason, while repudiating the doctrine that a violation of a statute or ordinance is per se negligence, this Court has held that in such cases the fact that the act which was charged to be negligent was also a breach of statute, may be considered with other evidence, as a circumstance tending to prove negligence. The reason for this rule is that the injured party has a right to assume that the other party wall obey the law, and has the right to govern himself accordingly, and hence when the law. is violated and injury occurs, that is some evidence of negligence. Whether this reasoning is altogether sound or not is not within the scope of our present inquiry. We are, however, not now inclined to extend. the rule further. The employment of the plain- , tiff, when he was under sixteen years of age, was not the proximate cause of the injury, and it could not in any degree tend to show that the defendant was negligent in not giving, or causing to be given, to the plaintiff proper instructions as to operating the machine. We find no other error in the record. The judgment of the circuit court reversing the judgment of the court of common.pleas and remanding the cause for a new trial is therefore

Affirmed.

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


author: Btjriíet, O. J.

text:
    The State of Ohio ex rel. v. Spellmire et al.

      A local or special law — Cannot be constitutionally enacted — When a general law will provide for the subject-matter — Establishment and change of schools or school districts should be by general laws — Invalidity of law of April 2, 1902 — Provision of section 26, article 2 of the constitution — Constitw- ■ tional law.

    1. Whenever a law of a general nature having a uniform operation throughout the state, can he made fully to cover and provide for any given subject-matter, the legislation, as to such subject-matter, must be by general laws, and local or special laws cannot be constitutionally enacted as to such subject-matter.
    2. The subject-matter of schools, including school districts, and establishing and changing the same, is of a general nature; and all legislation as to them must be general, having a uniform operation throughout the state. State ex rel. v. Shearer et al., 46 Ohio St., 275, overruled, and State v. Powers, 38 Ohio St., 54, reaffirmed.
    •I. The act of April 2, 1902, entitled "An act to create a special school district in Springfield and Sycamore townships, in Hamilton county, and Union township, Butler county,” 95 O. L., 743, is in conflict with that part of section 26, article 2 of the constitution which provides that: “All laws of a general nature, shall have a uniform operation throughout the state,” and is therefore unconstitutional and void.
    (Decided October 28, 1902.)
    Petition in Quo Warranto.
    On April 2, 1902, the general assembly passed an act establishing a special school district in Springfield and Sycamore townships in Hamilton county, and Union township in Butler county, to be composed of territory taken from parts of four different sub-districts in said townships, and to be known as Creseentville Special School District

      The first section of the act provides for establishing the special school district, and fixes its boundaries. The second and third sections are as follows:
    “Section 2. Said special school district shall be entitled to receive its proportionate share of the school funds in accordance with the enumeration of the year 1901 of the children who are entitled to attend school.
    “Section 3. The first election for officers of said special school district shall be held within twenty days after the passage of this act, upon the notice and in the manner provided in Section 2934 of the Revised Statutes of Ohio for holding special elections. At such election the polls shall be open at least two hours and shall not close before four o’clock P. M. Said special school district shall be governed by the laws which now are, or may hereafter be, in force relating to special school districts.”
    The act took effect from the date of its passage, and on April 7, 1902, an election was duly held in said special school district, and the respondents, Theodore Spellmire, Henry Horner, and August Kaetzel, were elected directors, and having entered upon their offices and proceeded to discharge the duties of directors of said special school district, this petition in quo warranto was filed against them by the attorney general on relation of Gabriel Wirsch, a taxpayer, to test the constitutionality of said act, and to oust said directors from office.
    The defendants answered justifying under and by virtue of said act of April 2,1902, and admitting that they claim under said act to constitute the -board of education of said special school district, and as such to have, execute and enjoy the rights and powers, and by that name to plead and implead, contract and “be contracted with, to acquire, hold, use, sell, convey and otherwise dispose of real and personal property, levy taxes and assessments for school purposes within the territory composing said district, and otherwise to exercise and perform all the duties and powers conferred by law on boards of education of special school districts in Ohio!
    Said defendants further answered, and by way of justification of the act establishing the special school district, averred that a new settlement had grown up around a new paper mill, and that the existing schools were distant therefrom, and rendered it very inconvenient for the pupils to attend the existing schools, and averred that “by reason of said facts, it became necessary and desirable that a new school district should be organized to embrace the territory thickly settled, known as the town of Crescentville, which was not organized as a municipal corporation of any kind, and which, as above stated, comprised parts of two counties, and of four school districts, it being impracticable and almost impossible, under the conditions there existing, to organize a special school district under the general laws relating thereto, if in fact it might be done under any general law. The general assembly of Ohio found that an emergency existed such that it was proper and necessary in its judgment to enact the statute set out in the plaintiff’s petition, which was duly passed on April 2,1902, and is published in 95 Ohio Laws, 743.”
    That part of the answer pleading justification, and the existence of an emergency, was stricken out by the court on motion of relator, the motion being in the nature of demurrer._ A general demurrer was filed to the answer and sustained by the court, and the defendants not desiring to further plead, judgment is now rendered in favor of the relator, ousting said defendants as prayed for in the petition, on the ground that said act is unconstitutional.

      Mr. J. M. Sheets, attorney general, and Messrs. Cleveland & Bowler, for relator.

      Mr. Harlan Cleveland, for relator, besides those noted in the opinion, cited and commented upon the following authorities:

      Hunter v. Mercer County, 10 Ohio St., 515; State v. Cincinnati, 20 Ohio St., 18; Secs. 3891, 3892, 3894, 3946, 3947, 3948, 3928, 3950, 3934, 3944, Rev. Stat.; Mott v. Hubbard, 59 Ohio St., 199; State v. Kurtz, 11 Circ. Dec., 705; 21 C. C. R., 261; Clark v. Board of Education, 44 Ohio St., 596; People v. Maynard, 15 Mich., 463; Society v. Pawlet, 29 U. S. (4 Pet.), 500; People v. Flanagan, 66 N. Y., 237; State v. Society, 11 Ohio, 1; Tone v. Columbus, 39 Ohio St., 281.

      Messrs. Wilson, Cosgrave & Jones, county solicitors, for defendants, besides those noted in the opinion, cited and commented upon the following authorities :

      State v. McCann, 21 Ohio St., 198; State v. Pugh, 43 Ohio St., 133; State v. Board of Education, 3 Circ. Dec., 703; 7 C. C. R., 152.
   Btjriíet, O. J.

The act in question is conceded to be special and local in its operation, and it is claimed by the attorney general that the subject-matter of the act is of a general nature, and that it is therefore in conflict with Sec. 26 of Art. 2 of the constitution, which provides that: “All laws of a general nature shall have a uniform operation throughout the state.”

By a long line of decisions of this Court it is established that this section of the constitution is mandatory, and not merely directory, and .that the question •as to whether a law is of a general nature must be determined from its subject-matter, operation and effect, and not merely from its form. To this extent all the decisions of this Court agree. But when it •comes to the rule by which it is to be determined-whether an act is of a general nature, or special and local, there has not been uniformity of decision or •opinion. In Kelley v. State, 6 Ohio St., 269, the judge delivering the opinion says: “We have then in the constitution, first, a general, unqualified, and positive prohibition or limitation of legislative power, forbidding the giving óf a partial operation to any law of a general nature — or in its own affirmative terms, requiring that a uniform operation throughout the state shall be given to all laws of a general nature. Without undertaking to discriminate nicely or define with precision, it may be said that the character of a law as general or local depends on the character of its subject-matter. If that be of a general nature, existing throughout the state, in every county, a subject-matter in which all the citizens have a common interest, * * * , then the laws which relate to and regulate it are laws of a general nature, and by virtue of the prohibition referred to, must have a uniform operation throughout the state.”

The same doctrine is found, in substance, in Cass v. Dillon, 2 Ohio St., 607. This doctrine was reaffirmed in Hixson v. Burson, 54 Ohio St., 470, and the same rule stated in these words: “Time and changed conditions may make it necessary to enlarge and extend the construction of the scope of section 26, of the second article of the constitution, but it is certainly safe to say now that every subject of legislation is either of a general nature on the one hand,, or local or special on the other. It cannot be in its nature both general and special, because the two are inconsistent. If it is of a general nature, the constitution requires that all laws — not some laws — on that subject shall have a uniform operation throughout the state.”

The same rule was adopted in State v. Powers, 38 Ohio St., 54; Ex parte Falk, 42 Ohio St., 638; State v. Ellet, 47 Ohio St., 90; Commissioners v. Rosche Bros., 50 Ohio St., 103; State v. Nelson, 52 Ohio St., 88; State v. Bargus, 53 Ohio St., 94; State v. Ferris, 53 Ohio St., 314; State v. Davis, 55 Ohio St., 15; Gaylord v. Hubbard, 56 Ohio St., 25; Silberman v. Hay, 59 Ohio St., 582; State v. Buckley, 60 Ohio St., 273; State v. Brown, 60 Ohio St., 462; Platt v. Craig, 66 Ohio St., 75; and State v. Yates, 66 Ohio St., 546.

While the rule distinctly announced in Kelley v. State, supra; and Hixson v. Burson, supra, was not restated in all of the aboye cases, the decisions in those cases rest upon that rule, and in many of them the rule is stated and reaffirmed.

As a subject-matter which is general can and must be legislated upon by general laws haying a uniform operation throughout the state, it follows from the above rules, when carried to their full extent, that every subject-matter which can reasonably be covered and provided for by a general law, can have no special or local legislation as to it, or any of its parts. If the general law should be found too broad or too narrow, the remedy lies in an amendment of the general law so as to remedy the defect throughout the whole state, and not in passing a special or local law as to some special subject-matter to be carved out of, and separated from, the general subject.

The above rules when carried to their full extent and import, prohibit special or local legislation upon a subject-matter which is general in its nature, and which can be reasonably covered and provided for by a general law having a uniform operation throughout the state. And the best evidence that a subject-matter can be covered and provided for by a general law having uniform operation, is the fact that such general law has been passed upon that subject-matter. When such is the case no local or special law can be constitutionally enacted on that subject-matter. If the subject-matter has not been covered by a general law having a uniform operation throughout the state, the members of the general assembly must form their best judgment under their oaths as to whether or not the subject-matter is of a general nature, and capable of being covered by a general law having such uniform operation, and vote accordingly, the final test as to its constitutionality resting with this Court.

The constitution, including this section, was framed by the Constitutional Convention, and adopted by a vote of the electors of the state, and the language is not to be understood as strained, technical or mysterious; but so plain that any ordinary man may understand and comprehend it. 'The words of Sec, 20 of Art. 2 are plain and easily understood, and from the language used in the section, any ordinary man would say that only general laws can be passed upon a subject-matter of a general nature.

The members of the general assembly are required to take an oath to support the constitution, which oath includes this Sec. 26 of Art. 2, and the idea cannot be tolerated that the framers of the constitution and the electors of the state, required the members of the general assembly to take an oath to support a provision so intricate as not to be understood. On the contrary it must have been expected that each member of the general assembly would know, or could easily inform himself, as to whether a subject-matter is of a general nature, and capable of being covered and provided for by a general law having a uniform operation throughout the state.

What has been said in some of the cases by judges delivering opinions, to the effect that no general rule can be given on that subject, and that each law must be tested in the courts before its constitutionality can be known, is not sound. The unsoundness is shown by the fact that for many years after the adoption of the constitution of 1851, there were few, if any, efforts made by the general assembly to pass local or special laws upon a subject-matter general in its nature; and because it cannot be believed that the framers of the constitution and electors, prescribed a rule which could not be understood, and at the same time required the members of the general assembly to support it. It is to the interest of everybody that the rule as to what constitutes a general subject-matter requiring laws of a general nature, should be so plain and simple as to be easily understood, and not to have technical exceptions — a small ring within a large one — a general subject-matter with a special subject-matter carved out of it.

The first effort of this Court to carve a special subject-matter out of a general one, so far as we know, is in the case of State ex rel. v. The Judges, 21 Ohio St., 1; and there is so little left of that effort since the decision of the case of State v. Yates, 66 Ohio St., 546, that it has little, if any, weight as an authority. The next effort was in McGill v. State, 34 Ohio St., 228. This last case was partly founded upon the case of The State v. The Judges, supra, and partly upon the California decisions under a provision in the hill of rights of the constitution in that state, reading as follows : “All laws of a general nature shall have a uniform operation.” The words “throughout the state,” are omitted, and hence it has been held in that state that a statute which has a uniform operation in the city or county, or to the class or subject to which it has been applied, conforms to the constitution of that state. Such a construction cannot be tolerated in this state for a moment. Here the law must have a uniform operation throughout the state. In the majority opinion in the McGill Case, supra, a quotation is made from The People v. C. P. R. R. Co., 43 Cal., 432, as follows: “The constitution, it will be observed, lias not undertaken to declare that all laws have a uniform operation. Uniformity, in that respect, is made requisite only in case the law itself be one of a general nature, and if it do not purport to be such a one, no objection as to uniformity, or want of uniformity, in its operation, can be interposed. The nature of a given statute, as being general or special, must depend, in a measure, upon the legislative purpose discernible in its enactment. We are not to say that a statute, plainly special in its scope, must either have a uniform operation or not operate at all; for this were to add another to the limitations which the constitution has imposed upon the legislative power, and to hold, in effect, that no special act could be passed at all — at least if ‘uniform’ operation means universal operation, as the argument of the defendant’s counsel would apparently maintain. Nor are we to say that a special statute — special in its aim and in the object it has in view — is, by mere construction, to be converted into a general statute, because tlie subject with which it deals might have been made the subject of a general law. It is obvious that every law upon a general subject is not, per se, nor by constitutional intendment, necessarily a law of a general nature. The subject may be general, but the law and the rule it prescribes may be special. Fees of officers, for instance, constitute a general subject — one which pervades the length and breadth of the state, and extends into every political subdivision of which it is composed — yet a statute may prescribe what these fees of office shall be in a particular county, and may declare that they shall differ from fees established for the same office as duties performed in another county. Such a law would not be a law of a general nature, involving the constitutional necessity of uniform operation; but it would be a special law upon a general subject. And, at an early period in our judicial history, the constitutionality of such a statute was unhesitatingly sustained by this court. Ryan v. Johnson, 5 Cal., 86.”

This case and other California cases hold the constitutional provision in that state, in effect at least, only directory, while in this state we hold our provision mandatory. This being so the rule of decision .there cannot prevail here. With us “uniform operation throughout the state” means universal operation •as to territory; it takes in the whole state. And, as to persons and things, it' means universal operation .as to all persons and things in the same condition or category. When a law is available in every part of the state as to all persons and things in the same condition or category, it is of uniform operation throughout the state.

~~ The dragging in of the California cases when they were not appliable, and upon tbeir authority carving out of a general subject-matter, a special one, or rather an exception, lead to an unsound conclusion in the McGill case, and a departure from the general rule laid down by this Court, both in earlier and later cases. The dissenting opinion in that case repudiated the doctrine of the California cases, and urged the rule in Kelley v. State, supra, but without avail.

Next after the McGill case, came State v. Powers, 38 Ohio St., 54, which failed to follow the doctrine of the McGill or California cases, but on the contrary followed the rule of Kelley v. State, and other like cases, and held that “Under Sec. 26, Art. 2, and Sec. 2, Art. 6 of the constitution, laws regulating the organization and management of common schools, must have a uniform operation throughout the state.”

Next came the case of State ex rel. v. Shearer, 46 Ohio St., 275, and followed the McGill and California cases, and while conceding the subject of schools to be a subject-matter of a general nature, under our constitution, carved out of that general subject-matter a so-called special, or local subject-matter — a special school district — and while the Powers case had held that to be unconstitutional, the Shearer case overruled the 1’owcrs case, and held as follows in the syllabus: “1. A law is not necessarily of a general nature by reason simply of its being upon a general subject. 2. Special legislation upon a subject-matter in its nature local, is not prohibited by Sec. 26 of Art. 2, of the constitution, which provides that ‘all laws of a general nature shall have a uniform operation throughout the state,’ notwithstanding the subject-matter is the subject of a general law. 3. The subject of dividing territory into school districts, is, in its nature, local. Hence, the formation of a special school district from territory within the limits of a township, by special act, is not in conflict with Sec. 26 of Art. 2, of the constitution. The State v. Powers, 38 Ohio St., 54, overruled.”

The Shearer case is expressly founded upon the case in 43 California, and a quotation is made from that case, as was done in the McGill case, but less-extensively. The Shearer case is not founded upon any distinction between the act then in question, and the one in question in the Potoers case; but the decision is put upon the ground stated in the syllabus above quoted.

This case is cited with more or less approval by this Court in State v. Ellet, 47 Ohio St., on page 97; in Commissioners v. Rosche Bros., 50 Ohio St., on page 114, and in Cincinnati v. Steinkamp, 54 Ohio St., on page 292, but in each of those cases the act there under consideration was held unconstitutional, and the doctrine of carving a special subject-matter out of a general one, was not applied.

The case was, however, cited and acted upon, in Metcalf v. The State ex rel., 49 Ohio St., 586, and a large tract of land was by that special act carved out. of the city of Findlay, and attached to an adjoining-township. But later the same question again came before this Court, in Campbell v. State ex rel., 56 Ohio St., 794, which involved the constitutionality of a special act creating a new township out of territory taken from two townships in Logan county. The-Shearer and Metcalf cases were both cited and relied upon,- but this court refused to follow them, and held the special act unconstitutional. The Court was. equally divided; but the statute provides that in such cases the decision shall be held as the law as to all such questions in other causes, until overruled by a. majority of all the judges. Section 439, Revised Statutes. No such overruling has since taken place, but, on the contrary, all the reported cases on the subject since that time are in accord with that decision.

After an exhaustive examination of the decisions of this Court on this subject, it is so clear that the doctrine of carving a special or local subject-matter out of one of a general nature, imported from California, and adopted in McGill v. The State and State ex rel. v. Shearer, supra, is in conflict with Sec. 26, of Art. 2 of our constitution, that we are compelled to overrule the Shearer case, and to reaffirm the Powers case, and the same is accordingly done.

The introduction of this California doctrine of carving a special subject-matter out of a general one, has met with stern resistance in this Court. In the McGill case two judges dissented, and while no dissent appears in the Shearer case, it is well known by the judges then and since composing the Court, that, two judges were opposed to overruling the Powers case. Two judges also dissented in the Powers pase, but upon what ground does not appear. But in nearly all of the later cases, in which the rule laid down in Kelley v. State, supra, has been followed, and often restated, the Court has been unanimous; so that the decided weight of authority in this Court, is, against the doctrine of the McGill and Shearer cases, as well as against the California doctrine of carving a special subject-matter out. of one of a general nature.

It is urged that an emergency existed for the establishment of this special school district, inasmuch as. the people by a vote had refused to create either a joint subdistrict, or a special district, and further that the decision of this case against the defendants. might jeopardize many school districts established by special acts in this state.

To these claims it is sufficient to say that there is no exception to said Sec. 26, of Art. 2 found in the constitution. The requirement is that all laws, of a general nature, not some laws, shall have a uniform operation. There is no provision for violating the constitution in an emergency. Cincinnati v. Hospital, 66 Ohio St., 440. And, moreover in this case there was no emergency, because after the people voted against the establishment of a separate school district, the right remained to go to the probate judge of either Hamilton or Butler county, and have three ■disinterested commissioners appointed, as provided in the general school law.

To the suggestion that other school districts in the state might be jeopardized, it is sufficient to say that it is our sworn duty to decide questions correctly, without regard to consequences; and especially is tliis so in constitutional matters. The law being correctly declared, the judgment can be so framed as to protect the public interests, and prevent anarchy or confusion, as was done in State ex rel. v. Beacom, 66 Ohio St., 491, and thereby as it were, “The wind is tempered to the shorn lamb.”

Judgment of ouster.

Davis, Sbauck, Price and Crew, JJ., concur.


author: Grew, J..

text:
    The Lima Railway Co. v. Little.

      Personal damages, action for — Alleged negligenci of street railway company — Company denies agency of negligent person —Question of fact for jury — Test of master’s liability — Scope , of agent’s action — Law of master and servant.

    1. Where in an action brought by L, against a street railway company to recover damages for personal injuries sustained by her, in consequence of the alleged negligent conduct of a servant of the defendant company, such company by its answer denies that the person whose act caused the injury complained of, was at the time of such injury, tue servant of said company engaged in the prosecution of its business, and there is evidence tending to support such denial. Held: That whether the person whose immediate negligence or misconduct caused the particular injury complained of, was, at the time, the servant of, and was then acting for the defendant company sought to be charged, is a question of fact to be submitted to the jury under proper instructions from the court.
    2. The test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, but whether such act was done by the servant while engaged in the service of, and while acting for the master, in the prosecution of the master’s business.
    3. A master is not liable for the negligent act of a servant or em- ' ploye, if at the time of the doing of such act the servant or employe is not then engaged in the service or duties of his employment although the act be one which if done by such servant or employe while on duty and at a time when actually engaged in his master’s service, would be clearly within the course and scope of the usual and ordinary duties of such servant or 'employe.
    (Decided November 18, 1902.)
    Error to tbe Circuit Court of Allen county.
    This was an action commenced originally in the ■court of common pleas of Allen county, Ohio, by Margaret Little against The Lima Railway Co., to recover damages for injuries sustained by her in attempting to board one of the company’s street cars at the pub-lie square in the city of Lima. Mrs. Little had come-to the public square as a passenger on one of the company’s cars, from the south part of the city of Lima,, and had received from the conductor of the car on which she came from the south a transfer ticket which entitled her to passage on an east-bound Market street car. Said east-bound Market street car was standing at the company’s transfer station near the center of said public square at the time Mrs. Little reached said station from the south. While she was attempting to get upon said east-bound Market street car, and had placed one foot on the lower step, the bell of said car was rung by one, John Cordrey, the car was suddenly started, and she was thrown to the street and injured. The Market street car which Mrs. Little was then attempting to board was car No. 36, and had come to the transfer station only a minute or two before, in charge of said John Cordrey as conductor thereon and one O’Malley as motorman. The evidence which is all set out in a bill of exceptions, tends to show that it was the rule and custom of said street railway company, at this time and place, to change conductors and motormen on said can No. 36, and it further tended to show that on the day of this accident and at the time it. occurred, such change of crew had actually taken place, and that Cordrey had then'been relieved and gone off duty as conductor although he had not yet left said car, but he had left his place on the platform (which -was. taken by McG-uff) and he (Cordrey) had gone inside of said car. The only questions arising in this case being such as grow out of a refusal to charge and the eharge"as given, therefore, the foregoing is a sufficient statement of facts for a proper understanding of such questions.

      Mr. Virgil Kline; Messrs. Richie & Richie and Mr. W. H. Leete, for plaintiff in error, cited and commented upon the following áuthorities:
    Mechem on Agency, section 737; 1 Shear. & Redf. on Neg., section 147; Bard v. Yohn, 26 Pa. St., 482; Mitchell v. Crassweller, 13 C. B., 237; Cousins v. Railway Co., 66 Mo., 572; Railroad Co. v. Wetmore, 19 Ohio St., 110; Smith’s M. & S., 151; Shear. & Redf. on Neg., sections 59, 62; Limpus v. Omnibus Co., 1 Hurl. & Colt., 541; Poulton v. Railroad Co., L. R., 2 Q. B. 535; O’Neil v. Railroad Co., 1 Circ. Dec., 610; 2 C. C. R., 504; Walker v. Railroad Co., 24 L. R. A., 363; Walton v. Sleeping Car Co., 139 Mass., 556; Morier v. Railroad Co., 31 Minn., 351; Yates v. Squires, 19 Ia., 26; Doyle v. Railroad Co., 37 N. E. Rep., 770.

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

      Ritchie v. Waller, 63 Conn., 155; Ephland v. Railway Co., 137 Mo., 187; Mott v. Ice Co., 73 N. Y., 543; Railroad Co. v. Derby, 14 How., 468; Cosgrove v. Ogden, 49 N. Y., 255; Howe v. Newmarch, 12 Allen, 49; Business College Co. v. Lloyd, 60 Ohio St., 448.
   Grew, J..

By the record in this case, but two questions are presented to this Court for determination, and these are: 1. Did the trial court err in refusing to give to the jury the special instruction requested by plaintiff in error? 2. Was the charge- as given by the court erroneous?

The only evidence adduced at the trial of this case in the court of common pleas was that offered on behalf of the plaintiff, and the whole of the evidence so offered is set out in a bill of exceptions that is made a part of the record in this case. There was little or no conflict in the testimony of the several witnesses, and the testimony offered tended to prove, if it did not establish the fact, that after the east-bound Market street car had reached the transfer station in the public square, and before Mrs. Little attempted to get. aboard of said car, there had been a change of conductors and motormen, and that at the time of the accident — at the time Mrs. Little was injured — that John McGuff was then the conductor on, and was in charge of, said east-bound Market street car No. 3G, and that Isaac Smalley was then motorman on said car.

John McGuff testified as follows: “Q. Whose duty was it, or who had charge of the car from the’ time it arrived at the station? . A. When it arrived there I was supposed to have charge of it — to take it there. Q._ You? A. Yes, sir. Q. You had taken your place, had you? A. Yes, sir. Q. You were, as you supposed, all ready to move out for the east? A. Yes, sir. Q. Your motorman was in his place? A. Yes, sir. Q. How long had you been in your place or had the car been standing there before you took your position? A. About a minute and a half. Q. And you had been in your place for this time? A. Yes, sir. Q. You had taken your, place and your motorman had taken his? A. Yes, sir. Q. And that car was in your charge with Smalley- as the motorman of that car? A. Yes, sir.”

Isaac Smalley on his examination in chief testified as follows: “Q. Where do you live? A. 1015 Hughes Avenue. Q. What was your business or employment in the month of October, 1899? A. I was a motorman on the Lima street railway. Q. On the evening of October 31st, were you in charge of any car as a motorman? A. Yes, sir. Q. What was. the number of that car? A. Car 36. Q. Which way was it headed? A. It was going east on Market street. Q. Where did you take charge of that car? A. At the transfer station. Q. Here in the public square? A. Yes, sir. Q. State, if you know, where is the usual place that passengers transfer from Main street to Market street? A. At the transfer station. Q. Do you know how long that car had stood there or did stand there before it moved out? A. Well, not over two minutes, I don’t think; of course I didn’t time it; I could not say positively, but I don’t think over two minutes. Q. You took charge of it at that place? A. Yes, sir. Q. Who was your conductor that went on duty with you? A. John McGuff.” And on his cross-examination as follows: * * * “Q. You had not been on the car coming down Market street? A. No, sir. Q. You changed crews, I believe, at the transfer station? A. Yes, sir. Q. Your crew consisted of yourself and McGuff? A. Yes, sir. Q. What crew had brougbt the car to the transfer station? A. Why motorman O’Malley and conductor Cordrey. Q. You had relieved O’Malley? A. Yes, sir. Q. And McGuff had relieved Cordrey? A. I supposed he had, of course I did not know. Q. That is the point that McGuff takes Cordrey’s place? A. Yes, sir, and I supposed he relieved him, he was in charge of the car; of course he was supposed to relieve him but I did not know whether he had relieved him or not. Q. Cordrey lives somewhere in the eastern part of the town?' A. He gets off at Scott street, there at the hospital, I do not know where he lives, whether he lives on that street or not, but he got off there and went up that street. Q. This was the regular time for the transfer of crews? A. Yes, sir.”

At the conclusion of the testimony and after the arguments the railway company by its counsel requested the court to give to the jury the following instruction : “If at the time plaintiff undertook to <get on the car, McGuff, as conductor, and Smalley, as motorman, had absolute charge of the car, No. 36, and so continued up and until the accident ■occurred, the company would not be responsible for the act of Cordrey, former conductor, if his trip and duties had ended upon the stoppage of the car, No. 36, at its arrival at the transfer station in the center of the square at a time prior to the injury.”

This instruction the court refused to give; the defendant, by its counsel, at the time excepted, and such refusal by the court to so charge is one of the matters ■ now assigned here as error. It is clear from the evidence in this case, that the instruction so requested by defendant was not a mere abstraction, but that the same was pertinent and applicable to a condition of facts which the evidence in the case at least tended to prove or establish, and if in its terms and language such request embodies and contains a correct statement of the rule of law governing defendant’s liability, if the facts and conditions therein assumed and stated were found by the jury to exist, then such request should have been given and the refusal to give it was error.

Therefore, in considering the question of whether or not the instruction requested was a: proper instruction, and one that should have been given by the court to the jury, it is important primarily, to determine whether if the facts and conditions assumed by said request, were by the evidence shown to exist, the rule of respondeat superior would then under such circumstances obtain or apply and the railway company be held liable for the act of Cordrey. In Railroad Company v. Wetmore, 19 Ohio St., 110, in discussing the doctrine of a master’s liability for the wrongful acts of his servant, the Court on page 131 says:

“The general rule as to the liability of the master for the wrongful acts of his servant Is thus stated by Mr. Smith in his work on Master and Servant: ‘A master is ordinarily liable to answer in a civil suit, for the tortious or wrongful acts of his servant, if those acts are done in the course of his employment in his master’s service. The maxims applicable to such cases being respondeat superior, and that before alluded to, qui faoit per alium faeit per se. This rule, with some few exceptions, which will herafter be pointed out, is of universal application; whether the act of the servant be one of omission or commission, whether negligent, fraudulent, or deceitful, or even if it be an act of positive malfeasance or misconduct, if it be done in the course of his employment, his master is responsible for it civiliter to third persons. Smith’s M. & S., s. p. 151.
“But, to make the master responsible, the act of the servant must be done in the course of his employment, that is, under the express or implied authority of the master. Beyond the scope of his employment, the servant is as much a stranger to his master as any third person, and the act of the servant not done in the execution of the service for which he was engaged cannot be regarded as the act of the master. Ib., s. p., 160; Shear. & Redf. on Neg., sections 59, 62; Limpus v. Omnibus Co., 1 Hurl. & Colt., 541; Poulton v. Railway Co., L. R., 2 Q. B., 535.”

In the case of Morier v. Railway Co., 31 Minn., 351, Mitchell, Judge, in the course of his opinion says: “Beyond the scope of his employment the servant is as much a stranger to his master as any third person. The master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment. * * * And in determining whether a particular act is done in the course of the servant’s employment, it is proper first to inquire whether the servant was at the time engaged in serving his master. If the act be done while the servant is at liberty from the service and pursuing his own ends exclusively, the master is not responsible. If the servant was at the time when the injury was inflicted, acting for himself and as his own master, pro tempore, the master is not liable. If the servant step aside from his master’s business for however short a time to do an act not connected with such business, the relation of master and servant is for the time suspended. Such, variously expressed, is the uniform doctrine laid down by all the authorities.” This rule or condition of liability while apparently simple and easy of comprehension is sometimes found difficult of application, but the difficulty in each particular case arises not from any uncertainty as to the rule itself, but in ascertaining whether the act complained of was one done in the execution of the masters business and within the scope of the servant’s employment. This fact once established, the rule which determines the liability or nonliability of the master Is easily applied, but the rule itself can in nowise aid in determining the question whether such act was or was not so done.

In determining whether a particular act was done in the course or within the scope of the agent’s employment two things are always to be primarily considered.

First — Was the agent engaged at the time in serving his principal?

Second-Even though so engaged, was the act complained of within the scope of the agent’s employment?

The cases dealing with the subject have generally to do with one or the other of these questions, and can generally be classified under these two heads.

“If the act is done while the servant is at liberty from service, and pursuing his own ends exclusively, there can be no question of the master’s freedom from all responsibility, even though the injury complained of could not have been committed without the facilities afforded to the servant by his relation to the master.” 1 Shear. & Eedf. on Neg., section 147.

In Hutchinson v. Railway Co., 5 Exch., 343, the court say: “We do not think a master is exempt from responsibility to his servant for an injury occasioned to him by the act of another servant, where the servant injured was not at the time of the injury in the service of his master. In such a case the servant injured is substantially a stranger and entitled to all the privileges he would have had if he had not been a servant.”

In the case of Railroad Co. v. Trainor, 33 Md., 542, Trainer was employed and paid by the day. .It six o’clock, P. M., his day’s work was ended, and on a day that he had been at work, but had finished his day’s work and was on his way home, the injury^ occurred. He had expected to resume his work the next morning. The court held that at the time of the injury he could not be considered in the employment of the company. In commenting on this case in Abell v. Railroad Co., 63 Md., 433, tlie court say : “The decision in Trainer’s case proceeds upon the assumption that at the time of the injury he was not acting in the service of the company. His day’s labor was over for the day and although he expected to resume labor the next day, that when his day’s work was over he occupied toward the company the position of a stranger and was entitled to all the privileges he would have had if he had not been an employe.” In the case last cited, Abell, an employe of the railroad company, while off duty for the day, was going to his home on a free pass on a train of his employer, expecting to return to his labor the next morning, and was killed by a collision caused by the negligence of the employes of the company. In an action for damages brought by the wife of the deceased the court held: “That Abell at the time of the collision was not acting in the service of the company, but was substantially a stranger and entitled to all the privileges he would have had if he had not been an employe.”

In the cases just cited the principle upon which the master was held to be liable to-wit: that the servant injured was not at the time of the injury in the service of the master, would, when applied to this case, and for like reason, exempt the master from liability, if the facts assumed in the request to charge were, by the evidence, shown to exist. The test of a master’s liability is not whether a given act was done during ■.the existence of the servant’s employment, but whether such act was done by the servant while engaged in the service of, and while acting for the master in the prosecution of the master’s business, and such is the rule whether the act complained of be wanton and willful or whether it be merely negligent on the part of the servant or employe. In whatever else they may differ the authorities agree upon the principle that an employer is not liable for the acts of an employe, unless committed while engaged in the service or duties -of his employment. The question presented by the instruction that was asked by plaintiff in error is not whether what was done by Cordrey was such an act as would have been within the course and scope of his employment and duties if he had then been on duty as conductor with the right to control and direct the movements of said car, but is, quoting from the request,, “if his trip and duties had ended, and McGuff, as conductor, and Smalley, as motorman, had absolute charge of said car No. 36 and so continued in charge up and until the accident occurred,” whether under such circumstances the railway company would be liable for the unauthorized act of Cordrey in causing said car to be started in the manner he did. While the rule is well established that the master will not be exempt from liability merely because the act of a servant was in disregard of a rule laid down by the master, or was in disobedience of his express command, yet on the other hand it is equally well settled that to make the master responsible for the act of a servant or employe such act must be done by such servant or employe while engaged in the service and duties of his employment, and in the prosecution of his master’s business. The fact that Cordrey worked daily for said company and was, in a popular sense, its employe, could not operate to make the railway company liable at all times and under all circumstances for his negligent conduct. Whether the company is so liable in a given case is made to depend upon actual service within the scope of his employment. A master has the right to select and choose his agents and-to determine himself, and assign to the servants so selected, their respective duties, and no assumption by an employe of duties not assigned to him will bring those duties within the course or scope of his employment as defined by thé master, and when an act is not Avithin the scope of a servant’s employment it cannot be within either the express or implied authorization of the master.

If, as assumed by the instruction requested by plaintiff in error at the time the accident complained of occurred, McGuff Avas then the conductor in absolute charge and control of said car, and Cordrey’s trip and duties as conductor thereon had ended, then, and in thaUevent, Cordrey having no longer any duty to perform in or about that car and it being no longer any part of his duty under his employment to be or remain on said car, his act (the ringing of the bell as a signal to start), was an unauthorized assumption of authority, not within the line of his duty or the scope of his employment, and thé railway company would not be responsible therefor.- The instruction asked by plaintiff in error was,, we think, a proper instruction and should have been given.

On the trial of this cause in 'the general charge, the court instructed the-jury in part as follows: “And if you find from the evidence that at the time plaintiff undertook to board this car, if you find she did, that • the negligent act, if there was one, that caused her injury — if she suffered any — was done by a servant and agent of the defendant then present, and the act that he did was a part of the ordinary duties of his employment, then, and in that case, it would make no difference whether or not the exact time of the performance of his duty, under the rules he was acting under, had expired or not. If the act that he did was a. part of his usual duty as an employe of that company, that company is still liable for the negligence in the performance of those acts. So that ‘if you find that the car of the defendant mentioned in the petition and evidence came from the west to the transfer station in the charge of John Cordrey, as conductor; and you further find that he remained aboard of such car and did any act that he would naturally be called upon to do while discharging his duty as a conductor, such act would be within the scope, and course of his employment; and if such act was negligently performed, thereby causing injury to plaintiff while she was attempting to get aboard said car as a passenger, and she was free from any negligence contributing thereto, then the defendant would be liable/ ”

To this instruction the defendant, the railway company, excepted and the giving of the same is here assigned as error. Much of what we have heretofore said on the question of the refusal of the court to charge as requested by plaintiff in érror applies with equal force to this charge as given.

This charge in effect, is an instruction to the jury that although at the time of the act complained of Cordrey may have been off duty and not then engaged in the actual service or duties of his employment as conductor, and not then clothed with present authority to perform the act in question, yet, if what he did- was a part of his usual and ordinary duties when actually serving the company, then such act would, if negligent, involve the railway company in its consequences and would make it liable to Mrs. Little for any injury ■ to her resulting therefrom. From the language employed in this instruction the jury may very well have understood, in the light of the undisputed facts in this case, that in determining the question of the defendant’s liability, they need inquire no further than to ascertain whether the act of Cordrey was such act “as he would naturally be called upon to do while discharging his duty as conductor.” If they should find it was, they were by this-instruction, in effect, told that such act would bind the company and make it liable although Cordrey’sduties and services for the day were ended, and the-relation of master and servant for the time was terminated. Such instruction was, we think, under the facts of this case, misleading and erroneous. As to what was done by Cordrey, there was in the evidenee in this case, no conflict or controversy whatever, but the capacity in which he did what was done, whether acting for himself or as the servant of the company, as well as his authority to so act, were in dispute, and it became and was important to know in this case whether at the time Cordrey rang the bell which caused the car to be started, he was then acting in the service of the company — within the course and scope of his employment — or was acting outside of it to effect some purpose of his own; and these'were not questions of law for the court, but were questions of fact to be submitted to and determined by the jury from a consideration of all the facts and circumstances proven in the case. But the jury were told,, in substance, that it was a matter of no consequence whether Cordrey’s duties had ended, and his service- and employment for the day had terminated, that “if the act that he did was a part of his usual duty as an employe of that company, that company is still liable for the negligence in the performance of such act,” because within the course and scope of his employment. But the act of Cordrey, in legal contemplation, was not within the course of his employment and the scope of his authority and duties, unless at the time of its commission he was acting in the service of the company and about the company’s business, and whether he was so employed and acting at the time Mrs. Little was injured, should have been submitted to the jury with instruction that if they should find he was not, then the railway company would not be responsible and could not be held liable for his unauthorized act. In this case the court said to the jury, that whether at the time of the act complained of he was then so employed and acting made no difference, and this we think was error.

The judgment of the circuit court and of the court of common pleas reversed, and cause remanded to the court of common pleas.

Btjrket, C. J., Spear, Davis and Shatjck, JJ., con-

Price, J., not participating.