author: Davis, J.

text:
    The Cleveland, Akron & Columbus Railway Company v. Workman, Administrator.

      Employe of railroad — Not required, in discharge of duty, to be on main track — Is mere licensee when so doing — Such use of track subject to all risks — Company owes no special duty to licensee — Sections 3336 and 3337, Rev. Stat. — Evidence concerning warning signals by company — Rule, as to reasonable precaution by plaintiff — Charge to jury as to evidence— Contributory negligence of deceased — Pecuniary injury to each separate beneficiary — Aggregate amount, how computed —Father being negligent not entitled to damages for injury to son — Evidence as to existence of city ordinance — Parol testimony not admitted, when — Law of negligence, damages and evidence.

    1. An employe of a railroad company, whose duties in the performance of his employment do not require him to he on the main track of the railroad with a three-wheeled handcar called a “speeder,” but who so goes upon the main track without any invitation or inducement therefor by the company, but with no objection on the part of the company, is at most a mere licensee, and his use of the track in such manner is subject to all the risks incident to the use of the track by the company, in the same manner it was used at the time the license was granted, and the company does not owe him the duty to especially look out for and protect him, when running its trains, except to use reasonable care to avoid injuring him after discovering him upon the track.
    2. Revised Statutes; sections 3336 and 3337 are intended for the protection of such persons only as are crossing the track or are about to do so; and they do not inure to the benefit of persons who are on the track and not at a crossing. Railroad Co. v. Depew, 40 Ohio St., 121, approved and followed.
    3. Where the evidence shows that the deceased was struck by a train and killed, at a point about 600 feet from the crossing. it is error to charge the jury that it is for them to determine,-from the evidence, whether the statutory signals were given or not, and that their conclusion on that subject would be one of the elements which they should consider in determining whether the defendant was guilty of negligence that produced, in whole or in part, the death of the deceased; and in such case it is also error to charge the jury that the deceased was bound to use reasonable precautions to detect the approach of trains, and to know that the defendant might run a train over the road at that point at any time, “unless lulled into a feeling of security by a failure of the defendant’s employes, in charge of its train, to observe the statutory regulations and rules' of the company in the manner of running and management of the train, at the time and place of the accident and under .the circumstances shown by the evidence.”
    4. Where it is an admitted fact that, at the time of the accident, it was so foggy that it was difficult, if not impossible, to see objects on the railroad more than a few rods distant; and there is evidence tending to show that the deceased took the “speeder” upon the main track for no reason connected with his employment other than his convenience; that after lighting one switch light he rode down the main track toward another switch light on the “speeder,” with a companion, in violation of the orders of his superior, the station agent; that there was a side track, or “passing track” from a point near the station to where the other switch light was to be placed, that the deceased could have easily placed the “speeder” upon said side track and reached his destination easily and with safety; and that instead of doing so he went down the main track without keeping any lookout behind him, it is error to refuse to charge the jury that if they find such facts the deceased was guilty of such negligence as would prevent the plaintiff from recovering in the case, unless the defendant could have avoided the injury after discovering the deceased upon the track.
    5. Where there is evidence tending to show that the father of the deceased was guilty of negligence directly contributing to the death of his son, and the court charged the jury that, in arriving at the amount of damages, they should consider the pecuniary injury to each separate beneficiary, first determining the value of the life of the deceased to his father, etc., but that the verdict should be for a gross sum not exceeding ten thousand dollars, it is error to refuse to charge the jury, as requested, that if they should find that the father of the deceased was guilty of negligence directly contributing to the death of his son, the plaintiff could not recover for any pecuniary loss suffered by the father for the death of his son. Wolf, Admr., v. Railway Co., 55 Ohio St., 517, approved and followed.
    6. An issue in the pleadings being whether an ordinance existed or not, it was error to permit parol proof of the passage of the ordinance; and the error was not cured by the court saying to the jury that the ordinance was a circumstance to be taken into consideration in connection with the other facts and circumstances, in determining whether the defendant was guilty of negligence, or whether the deceased' was guilty of negligence which contributed to cause his death.
    (Decided June 24, 1902.)
    Error to the Circuit Court of Knox county.
    The defendant in error as the administrator of, Arleigh L. Mead, deceased, sued in the court of common pleas of Knox county to recover damages from the plaintiff in error for the death of his intestate caused, as alleged, by the negligence of the plaintiff in error. The negligence charged was that the conductor and engineer of the train were negligent in running the train without a headlight and in violation of the village ordinance at a high and dangerous rate of speed, that the bell was not rung or any notice or warning given of its approach in any way whatever; that the train was not run on schedule time, but was an extra. It is alleged that the said afternoon was very foggy, making it very dark, so that it was “very difficult if not impossible to see objects on the said railroad more than a few rods in front of the engine.” The answer denied the allegations of negligence and denied specifically the passage or existence of the alleged ordinance, and charged the deceased with contributory negligence. A verdict and judgment were rendered for the administrator, which was affirmed in the circuit court, and the cause comes into this court for review.

      The facts are substantially as follows: The railway of the plaintiff in error passes through the northern part of the corporate limits of Buckeye City in an almost east and west direction, crossing the highway at right angles, the general direction of the road, however, being north and south. At the southeast corner of the crossing is Danville station. The railroad is perfectly straight east and west of the crossing for more than a mile each way. There is a descending grade from a point something over a mile east of the station. A switch extends along the south side of the main track, starting at the station and running east a distance of 1020 to 1040 feet, and a passing track, starting at the west side of the highway 100 to 150 feet north of the station, and running west about 2050 feet. This passing track was entirely clear on the day of the accident. The whistling post for the crossing is about a quarter of a mile east of the station. The west corporation line of Buckeye City was 582 feet from the west end of the platform and 603 feet from the station. The accident happened about 683 feet from the station. It happened on the 13th day of January, 1899. For many years the father of the decedent, J. H. Mead, had been station agent for the defendant company at this place. It was a part of his duty to light the switch lamps in the evening and bring them in in the morning. He was partially crippled and to assist him in the performance of his duties he purchased for his own convenience and used a “speeder” or three-wheeled vehicle which could be run on the track, propelled by hand and feet. He did this without objection on the part of the company. The “speeder” at the time of the accident had a brake, but the brake had been lost or broken off so that there was no way of stopping it except by the hands. The deceased at the time of the accident, was about sixteen years old and was in the employ of the company at five dollars per month as his father’s assistant and night- man. His duties were to light the switch lamps in the evening and bring them in in the morning, attend to the two night trains at the station and when not in school carry the mail. Mr. Mead, the father, permitted his son, the deceased, to use the “speeder” in doing his work, but cautioned him to be careful and to look out for trains when on the track. He had forbidden him to allow anyone else on it with him, but had seen him once or twice take another boy with him. It appeared in evidence that every two or three days, and sometimes oftener, extra trains ran through Danville without stopping and that one of the rules of the road provided: “Extra trains may pass over the road at any time without previous notice, and foremen must always be prepared for it. Anything that interferes with the safe passage of trains at full speed' is an obstruction.” At the time of the accident one J. P. McCaskey, a telegrapher out of employment, was temporarily helping Mr. Mead in the office. While Mr. Mead and Mr. McCaskey were in the office together during the afternoon, McCaskey, who Avas sitting at the instrument table, heard orders going over the wires, and turned to Mead and told him that an “extra” would meet No. 23 at a station east of Danville, either Brinkhaven or Baddaw Pass. Number 23 passed Danville going north at 2:52, the “extra” coming south (west) actually passed at Brinkhaven. Mead, who was busy at the time, paid little attention to the matter and it passed out of his mind. Neither he nor McCaskey communicated the fact of the “extra” being on the road to Arleigh, the deceased. Mr. Mead, the station agent, left the station about three o’clock and went home, but before he left the deceased came in. Shortly after his father had left, the deceased took the “speeder” and a boy companion, one Herbert Parrish and started out to light the switch lamps. It does not appear that Mr. Mead, the father, knew that the deceased was going“on the “speeder” that day, nor did he, nor Mc-Caskey, nor anyone so far as the evidence discloses, inform the deceased that an “extra” was on the road. The boys backed up the main track to the north switch light, and having lighted it, they turned toward the station where they stopped for a moment to “hello” to Mr. Burrows’ horse to get off the track and then went on their way down the main track toward the south switch light. They sat side by side with their faces toward the south talking together and did not at any time, until just before the accident occurred, so far as known, look behind them. They both worked the handle-bars and made the “speeder” go as fast as they could. The “extra” had no orders to stop at Danville, nor any reason to expect any. The rule of the company required each train when running after sunset or obscured by fog to display a headlight. But there was no headlight burning. The engineer testifies that a headlight would not have thrown a glare through the fog to enable parties to see that there was something coming, but there is other testimony on the subject. The train was going at full speed. There is some conflict in the testimony as to the rate of speed. The trainmen put it at twenty-five to thirty miles an hour, and plaintiff’s witnesses about double that. The engine whistled, but whether it whistled for the crossing or not, or whether it gave an alarm whistle before the accident occurred is a matter of some dispute. It does not appear that the boy heard the whistle. McCaskey, being in the station, heard the whistle and running out, called to the boys as loud as he could. They were then some fifty feet beyond the west side of the crossing. Failing to attract their attention he stood upon the corner of the platform and tried to give the engineer a signal to make him stop the train or whistle. The engine was then right up to him. The target was white which indicated there were no orders there for the train and no occasion to stop and the road was clear. As the engineer passed he saw McCaskey give a signal. He did not understand it, and turned for an instant to look again at the target and then at once turned his face down the track, and at the same instant the fireman saw the boys at the distance of one and one-half telegraph poles ahead of the train. Thé boys were facing south then with their backs to the train. The engineer claims to have given the alarm whistle at this time, applied the air brakes to the engine, gave a signal for the brakes, reversed his engine and did everything in his power to stop the train. The conductor and the two brakemen were in the caboose and at the whistle for brakes they ran out and set them as fast as they could. Parrish, the boy who accompanied the deceased, says that the first he knew of the danger was the rumbling of the train. They both looked back, but the train was close upon them. The train1 men say that immediately upon blowing the alarm whistle the boys turned and looked back. Parrish, sitting on the left side, succeeded in getting off, but the deceased fell back upon the track and was instantly killed. A witness who was at the station had seen the boys come down the track on the “speeder.” He heard the whistle for the station as he was getting on his wagon and drove across the track, and called to the boys as loud as he could and failed to get their attention. They were then a telegraph pole and a half from the crossing.
    The existence of the alleged ordinance of Buckeye City, prohibiting the running of cars through its corporate limits at a speed exceeding eight miles an hour, was distinctly put in issue by the pleadings. On the trial the plaintiff called as a witness the mayor of Buckeye City to prove that he had given some notice to the company as to the speed of trains through the corporation. The defendant objected and the court ruled that the plaintiff should first prove the ordinance if there was one. Thereupon the witness produced the ordinance book containing the record of the supposed ordinance. Objection was made for the reason that the book was not the minutes of the proceedings of the council, nor did the record show that the supposed ordinance had ever been signed by the mayor. Thereupon the former mayor was called and a piece of paper handed to him, signed by himself and, and he says, by the city clerk, both in the presence of the council. He says it was passed one evening and posted the next day. The paper was not at that time offered in evidence, but thereupon the plaintiff again offered the book of ordinances and was permitted to read therefrom the ordinance as it appeared therein, to which ruling the defendant éxcepted. The record did not show that the ordinance had ever been signed by the mayor, nor that it had been published. Thereupon counsel for the defendant moved that it be stricken from the record for those reasons and because the ordinance was not evidence of the passage of an ordinance which could only be proved by the minutes of the proceedings of council. The motion was overruled and the defendant excepted. Later in the trial the plaintiff offered the original piece of paper on which the ordinance was written, signed by the mayor and the clerk, which had been identified by the witness. Thereupon the paper was admitted in evidence, to which the defendant excepted. The minutes of the council were not produced or offered. The defendant asked the court to charge the jury as follows: “That there having been testimony adduced tending to show that the defendant’s station agent at Dan-ville station, James Mead, was guilty of negligence that contributed to the death of his son, Arleigh J. Mead, the court charges you that the plaintiff cannot recover in this case on account or by reason of any negligence on the part of the said James Mead,” which the court refused to give, and the defendant excepted. But the court upon that subject, charged the jury as follows, at the request of the plaintiff: “If the jury find negligence of the defendant, its agents and servants, and also that there was negligence of the said, J. H. Mead as agent and servant of the defendant, the fact of such negligence of said J. H. Mead, which, combined with the negligence of other agents and servants of the company, caused the injury, would not prevent recovery if such negligence of the defendant, its agents and servants, was the proximate cause of said injury, and said Arleigh J. Mead was not guilty of negligence contributing directly to his injury.”
    And the court also said to the jury upon that subject :. “In actions of this kind, gentlemen of the jury, the administrator is a mere nominal party, having no interest in the case for himself or his estate he represents, as such actions are for the exclusive benefit of the beneficiaries named in the section of the statute that I referred to at the beginning of this charge. In arriving at the total amount of damages in the case the jury should consider the pecuniary injury to each separate beneficiary, but the verdict should be for a gross sum not exceeding ten thousand dollars. * * * What has each separate beneficiary lost in money in the death of Arleigh J. Mead, will be your inquiry. First, determine the value of his life to the father; next, the value of his life to his mother, and then to each of the seven sisters, and after you have found the value of his life to them all you will return your verdict for the aggregate sum. In considering what each beneficiary is entitled to recover you are to consider the age, the health and the ability of the deceased to perform labor and earn money. * * * The health and circumstances of the parents and the disposition and good will of the deceased to the beneficiaries as likely to result in gifts or inheritances. * * The defendant also asked the court to charge the jury in that connection, as follows: “The plaintiff is not entitled to recover in this action for any pecuniary loss suffered by James H. Mead, the father of Arleigh J. Mead, on account of the death of the said son, if the jury shall find that the said James H. Mead was guilty of negligence directly contributing to the death of his son.” This was refused and the defendant excepted. The defendant also asked the court to charge the jury as follows:' “1. That the character of Arleigh J. Mead’s employment considered, and the means which he used at the time of the accident to reach the point at which he intended placing the switch light, and the other facts and circumstances surrounding the transaction considered; that the employes of the defendant upon and in charge of and in the management of the train, which caused his death, were not obliged to regulate the speed of said train with reference” to the possibility of injury to said Arleigh J. Mead, provided said employes in the exercise of proper care and caution in the management and running of said train to accomplish the purpose of their employment used all proper care and diligence to avoid said accident after they became aware of the presence of said Arleigh J. Mead upon said railroad track.”
    “4. It is alleged in the amended petition that the afternoon or evening upon which the accident occurred was very foggy, making it very dark so that it was very difficult if not impossible to see objects on the railroad more than a few rods in front of the engine. If you find such to be the fact and that the deceased, Arleigh J. Mead, took the ‘speeder’ out upon the main track and chose that means of travel for no reason connected with his employment other than his own convenience, and after lighting the north switch light returned to the station and passed with the ‘speeder’ down the main track to light the south switch light, taking with him a companion, in violation of the order of his superior, the station agent, said James Mead; and if you shall find that from the street crossing adjoining the station there was a side track connected at that point with said main track which led directly to the south switch where the second light was to be placed, and that the said Arleigh J. Mead could have easily used the said side track with the ‘speeder’ for reaching the point where the light was to be placed; and if you shall find that by so doing he would have been in a position of safety from passing trains, and that instead of so doing he chose to so go down the main track without keeping any lookout behind him or using other precautions to insure his own safety from passing trains, then I charge you that such conduct was negligence upon the part of said Arleigh J. Mead, and such negligence the court charges you as will prevent the plaintiff from recovering in this case unless they, the jury, shall further find that the defendant’s agents and employes upon and in the management of the said train that caused the accident, could have avoided said accident after they became aware of the presence of the said Arleigh J. Mead upon said track.”
    These requests were refused and the defendant excepted. The court charged the jury as follows: “Evidence has been offered in this case on the jmrt of the plaintiff tending to show that the defendant neglected and failed to sound the whistle of the locomotive for the public crossing, and failed to ring the bell as provided by law on approaching and passing the public crossing a short distance from the point where the deceased met his death. Whether the bell was rung or the whistle sounded or both, is a question for you to determine from a consideration of all the evidence offered, and your conclusions on this subject would be one of the elements that you are to consider in determining whether the defendant was guilty of negligence that, produced, in whole or in part, the death of the deceased. In this connection I will only add that it was the duty of the company to make and enforce reasonable rules and regulations to guard against danger at public road or street crossings and in dangerous places, and that the deceased, while in the employment of the company, and when at 'or near a public street crossing, had a right to expect the performance of that duty.”
    And also as follows: “A railroad track is commonly a place of danger. Whoever undertakes to walk along a railroad track or to travel thereon with a ‘speeder’ or other means of locomotion must take such precautions as to ascertain the presence of danger as the ordinarily prudent person would take under like circumstances.
    “ The deceased, Arleigh J. Mead, on going on the defendant’s track, was bound to use all reasonable precautions to detect the presence or approach of danger from passing trains. He was bound to know that the defendant might run a train over its road at that point at any time; and ordinary care would require him to look and listen for the approach of trains; and to continuously keep alive to the approach and presence of danger from passing trains while on the defendant’s track, unless lulled into a feeling of security by the failure of the defendant’s employes in charge of its train to observe the statutory regulations and rules of the company in the matter of the running and management of the train at the time and place of the accident, and under the circumtances shown by the evidence.”
    The court also charged the jury as follows with respect to the ordinance:
    “Evidence has been offered tending to show that some time prior to the accident the village of Buckeye City had passed an ordinance limiting the speed of trains through the corporate limits, which it had a right to do under the statutes. The issue is made in the pleadings that this ordinance is not a valid ordinance; but the court is of the opinion that the issue is not material in the case. It does not depend on the fact whether the ordinance is valid or not. If the village council have passed an ordinance, or attempted to pass an ordinance which they supposed was valid, and notice of its passage had been communicated to the railroad authorities, and they had acted upon the assumption that the ordinance was valid, and had regulated the speed of their trains-accordingly, and also if knowledge of the passage of the ordinance had come to the deceased, it would be, for the purposes of this case, equivalent to a valid ordinance; and the deceased would have a right to presume that the company would conform to such regulation; and if he acted in accordance with such presumption, in the absence of knowledge of the fact that the railroad company had exceeded such limit in running its trains, it would not, of itself be an act of negligence on the part of the deceased. But if, on the other hand, the village had passed a valid ordinance, or had attempted to pass an ordinance without conforming to the requirements of the statute, and the provisions of the ordinance had been ignored by the company, and they had exceeded the limits prescribed by the ordinance in running trains through the village, and this fact had come to the knowledge of the deceased, the mere fact that the ordinance had been passed would not give the deceased a right to assume that the company, at the time of the accident, would regulate the speed of its train in conformity to the ordinance. Running a train in violation of an ordinance limiting the speed of trains is not, of itself, negligence on the part of the railroad company. After all, gentlemen of the jury, it is a mere circumstance for the jury to take into consideration, in connection with all the other facts and circumstances, in determining whether the defendant was negligent in the running of its train in the manner in which you find the evidence shows it was run at the time and place of the accident; and also in determining whether the deceased was guilty of negligence that contributed to cause his death.”
    Upon the trial several of the rules of the company were given in evidence. After the parties had rested, after the jury had risen to their feet and some of them had left the jury box, but before any of them had retired to their room, counsel for the plaintiff requested that the book of rules of the defendant, which had been referred to, and offered during the progress of the trial, be sent to the jury to be used by them during their deliberations. This was objected to for the reason that only a small portion of the book had been offered in evidence, the plaintiff claiming that the whole book had been offered. The court said that only certain rules or parts of the book had been offered in evidence, and instructed the jury as follows: “Of course, the jury will understand that only such rules as have been offered in evidence and read to the jury during the trial will be considered by them.” Thereupon the jury retired to their room. The book of rules was subsequently sent to them and was in their possession during the time of their deliberations.

      Messrs. Cooper & Moore and Messrs. Watson, Burr & IAvesay, for plaintiff in error.
    The most serious charge of negligence against the defendant below lay in running the train through the corporate limits of Buckeye City in violation of a village ordinance prohibiting the running of trains at a speed exceeding eight miles per hour. The existence of such ordinance was distinctly put in issue by the pleadings. This put the plaintiff upon strict proof of its enactment in accordance with the statute.
    Our contention is that the record of these proceedings of the council which the statute requires the clerk to keep is the best, and, unless perhaps the book should be destroyed or the like, is the only evidence admissible to prove the passage of an ordinance. We believe the rule is fundamental. 1 Greenleaf on Evidence (16 ed.), Sec. 86 and Ib., Sec. 82; Dillon on Municipal Corporations (4 ed.), Sec. 310; City of Covington v. Ludlow, 1 Metc. (Ky.), 295; Parsons v. Trustees, 44 Ga., 529; City of Logansport v. Crockett, 64 Ind., 319; People ex rel. v. Starne, 35 Ill., 121; City of Aurora v. Fox, 78 Ind., 1; Steckert v. Saginaw, 22 Mich., 104; Morrison v. Lawrence, 98 Mass., 219.
    But the existence of the ordinance and its violation on the day in question are alleged in the petition as a chief ground of actionable negligence.
    We understand the law to be that the violation of such ordinance is negligence per se and gives one injured by its breach, and for whose protection it was passed, a right of action against the company. Sherman & Redfield (5 ed.), Sec. 13.
    As a general proposition a railroad company has the right to run its trains at any rate of speed not forbidden by law consistent with the safety of its trains and passengers and persons rightfully upon its right of way at road crossing and public places. Sherman & Redfield (5 ed.), Sec. 460 and notes; Railway Co. v. Lawrence, 13 Ohio St., 66.
    Whether the defendant’s trains should slow down at telegraph stations for possible stop orders or not was for the company itself to determine. It had the right to determine that question as it saw best, and whatever its rule or practice was in that; respect would not be negligence.
    But if “proper practice” in the management of railroads required such trains to slow down for the purpose indicated in the questions to Hunt, it was not a duty which the company owed to Arleigh Mead, one of its employes. The company did not owe him the duty of slowing dowm for a possible stop order. The gist of the action is the violation of some duty which the defendant owed to the deceased, and not the violation of the duty which it owed to its stockholders and the public to make its service most efficient, for the latter and most profitable for the former. Patterson Railway Accident Law, page 6; Sherman & Redfield on Negligence (5th ed.), Sec. 8.
    That the evidence objected to, if incompetent, was seriously prejudicial seems obvious. We think the subject is covered in Railway Co. v. Schultz, 43 Ohio St., 270.
    I.n the course of the trial some twenty rules from the book of rules far the government of the transportation department of defendant were offered and read in evidence by one side or the other. The book contained over five hundred rules altogether, covering time tables, signals, the movement of trains and other subjects relating to that department.
    At the request of counsel for the plaintiff below, the entire book of rules was sent to the jury over defendant’s objection, and remained with them during their deliberations.
    Notwithstanding the caution administered by the court we think clear error was committed to the prejudice of the defendant. Many of the rules read by the ordinary juror without explanation would be grossly misleading. Others are calculated to divert the jury from 'the issues in the case and to work prejudice against the company “on general principles.”
    The jury had nothing but their memory to guide thetai in picking out the twenty or more rules offered in evidence of the five hundred in the book. It is not to be believed that they could observe the injunction of the court, or, if the book was used at all, confine their reading to the rules offered.

      It has been often held, that the delivery to the jury of an unauthorized book or paper is ground for new trial. Thus, although the paper is said to be a mere estimate shown to the jury by way of calculation, the court remark: “We do not know what effect this paper may have produced.” Hilliard on New Trials (2nd ed.), p. 216; Sheaff v. Gray, 2 Yeates (Pa.), 273.
    It is ground for setting aside a verdict if papers are improperly given to the jury unless by assent. Flanders v. Davis, 19 N. H., 139; Thompson on Trials, Sec. 2580; Kalamazoo Mfg. Co. v. McAlister, 36 Mich., 327; Bates v. Preble, 151 U. S., 149.
    We call attention in this connection to the very pertinent statement of the law on this subject in Insurance Co. v. Cheever, 36 Ohio St., 201.
    The action was brought for the benefit of the next of kin of the deceased, including the father, J. H. Mead.
    There was evidence in the case tending to show negligence on the part of J. H. Mead in not warning Árleigh that the extra was coming, after McCaskey had told him that it would pass No. 23 at Brink Haven.
    In the case of Railway Co. v. Crawford, 24 Ohio St., 631, it was decided that as the statute then stood (S. & C., 1139) it was not competent for the defendant, in order to defeat the action, to prove that some of the next of kin, for whose benefit the suit was brought, were guilty of negligence which contributed to the injury.
    Shortly after the report of that decision the statute was amended so as to require the jury to assess the damages to the persons respectively for whose benefit the action was brought. Revised Statutes, Sec. 6135. Under this change in the statute the Supreme Court in the case of Wolf, Admr., v. Railway Co., 55 Ohio St., 517, held that in such actions “the defense of contributory negligence is available as against such beneficiaries as, by their negligence, contributed to the death of the deceased, but the contributory negligence of some of the beneficiaries, will not defeat the action as to others, who were not guilty of such negligence.”
    1. Looking and listening.
    What one must do in the exercise of ordinary care can not usually be prescribed by the court, because the occasions and circumstances under which it must be exercised are of infinite variety. But the case of a person about to cross or being upon or along a railroad track is an exception. In this class of cases the law prescribes a specific line of conduct and exacts of the person specific duties unless excused by circumstances which would lead a prudent and careful man to omit their performance. The quantum of care in such cases is prescribed by law. Elliott on Railroads, Sec. 1166; Smith v. Railway Co., 141 Ind., 92; Mann v. Railway Co., 128 Ind., 138; State v. Railway Co., 76 Me., 357; Beach on Contributory Negligence, Sec. 180.
    He must use his senses to discover any approach of a train. If he fails to do so, the law presumes him guilty of negligence and he can not recover. The rule is a part of the alphabet of railroad law. Beach on Contr. Neg., Sec. 181; Railway Co. v. Snyder, 24 Ohio St., 670; Railway Co. v. Whitacre, 35 Ohio St., 627.
    Any circumstance which increases the danger increases the duty of care to avoid injury. Railway Co. v. Morel, 40 Ohio St., 338; Railway Co. v. Stommel, 126 Ind., 35 ; 25 N. E. Rep., 863; Meek v. Railway Co., 38 Ohio St., 632; Hart v. Devereux, 41 Ohio St., 565; Baker v. Pendergast, 32 Ohio St., 494.
    2. Voluntarily exposing oneself to danger.

      Where an employe having a choice of two ways of performing a duty, one entirely safe, the other obviously and greatly dangerous — adopts the dangerous way, and is injured, he is guilty of negligence which will bar a recovery by him in an action against the employer based on the latter’s negligence. Elliott on Railroads, Yol. 3, p. 2069, and notes.
    This rule is applied in a great variety of cases. Penna. Co. v. O’Shaughnessy, 122 Ind., 588; Bresnahan v. Railway Co., 49 Mich., 410; Iron Co. v. Burke, 12 Ill. App., 369; St. Louis Co. v. Brennan, 20 Ill. App., 555; George v. Railway Co., 109 Ala., 245; Railway Co. v. Tindall, 57 Kan., 719; Beach on Contributory Negligence, Sec. 37, and notes; Schafter v. Sandusky, 33 Ohio St., 246; Village of Conneaut v. Naef, 54 Ohio St., 529.
    For the rules applicable to similar cases to that at bar, we call attention to 3 Elliott on Railroads, p. 2048; Penna. Co. v. Wachter, 60 Md., 395; Jolly v. Railway Co., 93 Mich., 370; McGrath v. Railway Co., 18 A. & E. R. R. Cases, 5; Burling v. Railway Co., 85 Ill., 18; Railway Co. v. McKnight, 16 Ill. App., 596.
    ■3. Violation of order.
    It is very generally held that disobedience of the rules and orders of the employer constitutes contributory negligence. 3 Elliott on Railroads, pp. 2070 and 2019, many cases cited.
    This is distinctly affirmed in Woolsey v. Railway Co., 33 Ohio St., 227.
    Such a violation of orders will not preclude one from recovering if the disobedience in no way contributed to cause the accident. Elliott, Sec. 1292.
    When one has become aware or has had reasonable notice that another has negligently put himself in a position-of danger, he must use all reasonable precautions to avoid injuring him. Railway Co. v. Kassen, 49 Ohio St., 230.
    Next to the violation of the alleged ordinance as to speed, the charge of negligence most prominently urged on the trial was the alleged failure to ring the bell and sound the whistle for this road crossing.
    We think this whole theory of the case erroneous.
    The foundation on which actionable negligence rests is violation of a duty which the defendant owed to the plaintiff.
    But the statute in question was not made for the protection of employes upon the line of the road. The railroad company did not owe to the deceased the duty of ringing the bell' and sounding the whistle at the road" crossing. Patterson Railway Accident Law, under the subject of “Statutory Signals,” p. 160; 3 Elliott on Railroads, Secs. 1309, 1310; Sherman & Red-field on Neg. (4th ed.), Sec. 8; Bishop óü Non-Contract Law, Sec. 446.

      Williams v. Chicago & Alton Railway Co., 135 Ill., 491, where the authorities are reviewed and it is held that the statutory duty to ring the bell and sound the whistle on approaching a highway crossing is intended for the benefit of travelers on the highway and passengers on the train, and that if one plowing in a field near the crossing is injured by the neglect of such duty he has no right of action based upon such neglect. Rohback v. Pacific Railroad, 43 Mo., 187; Railway Co. v. McKnight, 16 Ill. App., 596; Randall v. Railway Co., 109 U. S., 478; Harty v. Railway Co., etc., 42 N. Y., 468; O’Donnell v; Railway Co., 6 R. I., 211.
    The same principle is approved in Railroad Co. v. Depew, 40 Ohio St., 121, though the case is not made to turn finally upon the proposition but upon that of contributory negligence.

      The deceased, when riding the speeder, was at best no more than a licensee. Elliott on Railroads, Secs. 1248,1249.
    The duties of a railroad company to one of its employes sound in contract. Railway Co. v. Ranney, 37 Ohio St., 665; Alexander v. Penna. Co., 48 Ohio St., 623.
    But an employe may become a trespasser or mere licensee. Brevig v. Railway Co. (Minn.), 66 N. W. Rep., 401.
    The use of a speeder on the track is not the ordinary mode in which the duty of lighting switch lamps is performed.
    The speeder was not owned, furnished or controlled by the company. And if the permission given by his father to Arleigh to use it was in law the permission of the company, nevertheless it was a mere permission, and made Arleigh no more than a licensee.
    As to the duty of the company to the licensee, the rule is that the licensee takes his license subject to its concomitant perils and the licensor as a general rule owes him no duty except to refrain from wantonly or willfully injuring him. Elliott, Secs. 1250, 1251; McCabe v. Railway Co., 88 Wis., 531 (S. C., 60 N. W. Rep., 260).
    The court charged the jury that if the village council attempted to pass the ordinance, and notice of it was communicated to the railroad authorities, and, upon the assumption that the ordinance was valid, they had regulated the speed of their trains accordingly (i. e., to eight miles per hour), the deceased would have a right to presume that the company would conform to such regulation, etc.
    Now there was no testimony before the jury whatsoever that the railroad company ever did reduce the speed of its trains, passing through Buckeye City without stopping, to the limits prescribed by the ordinance.
    After the supposed passage of the ordinance, and on some other occasions, wthen notified, the company did for a while perceptibly lower the speed of its trains, but the testimony does not show that the company ever did, even for a short time, reduce the speed of such trains to the limit of the ordinance or below fifteen to twenty miles per hour.
    The charge therefore assumed a state of fact not in evidence, and in an important feature of the case.
    We think it was error. Bain v. Wilson, 10 Ohio St., 14; Walker v. Stetson, 14 Ohio St., 89; Insurance Co. v. Cheever, 36 Ohio St., 201.

      Mr. W. Stihoell and Messrs. D. F. & J. D. Ewing, for defendant in error.
    The deceased, admittedly an employe, admittedly traveling the same route in his line of duty, travelled by him, during all his employment, and by those in the same positions for years before, before he starts on his trip, asks “where the local was (then the next train due) ?” He then goes on usual trip and about 600 feet ■west of the crossing is run down.
    The circumstances hereinbefore and hereinafter stated, demonstrate that he was entitled to the benefit of all customary and proper warnings, and care on on the part of the company. Dick v. Railway Co., 38 Ohio St., 389; Harriman v. Railway Co., 45 Ohio St., 11; Railroad Co. v. Parker, 41 Am. & Eng. R. R. Cas. (Ill.), 339; Railroad Co. v. Jones, 65 Ga., 631; Meek v. Railroad Co., 38 Ohio St., 632; Beach, Sec. 141; Fisher v. Railroad Co., 131 Pa. St., 292; Deans v. Railroad Co., 45 Am. & Eng. R. R. Cas., 45; Railroad Co.
      v. Miller, 25 Mich., 279; Railroad Co. v. Lavalley, 36 Ohio St., 221; Railroad Co. v. Henderson, 37 Ohio St., 549.
    Bearing on the authority of the agent to employ additional hands in case of necessity, even where the employment, boy admitted as it is in the record, and proved as to the boy, see Sloan v. Railway Co. (Iowa), 11 Am. & Eng. Ry. Cases, 144; Reilly v. Railway Co., 34 Am. & Eng. R. R. Cas., 81; Railway Co. v. Whitacre, 35 Ohio St., 632.
    The policy of the law of Ohio as to the doctrine of liability of the defendant, in the absence of any direct notice by any closed gates or otherwise, where the person injured is guilty of negligence in going in a place of danger yet may recover if the defendant notwithstanding such negligence, might by the exercise of ordinary care have discovered. the person in or approaching a place of danger, and avoided the injury, is pretty well settled. Railroad Co. v. Picksley, 24 Ohio St., 654; Railroad Co. v. Crawford, 24 Ohio St., 631; Troy v. Railroad Co., 34 Am. & Eng. R. R. Cas., 13; Railroad Co. v. Trainer, 33 Md., 594; Railway Co. v. Sympkins, 54 Tex., 615; Railroad Co. v. Whites, 34 Am. & Eng. R. R. Cas., 22; Beach on Cont. Neg. (3 ed.), Sec. 201; Railroad Co. v. Schade, on a case reported in 8 Circ. Dec., 316; 15 O. C. C., 424, which was affirmed in 57 Ohio St., 650, unreported. Railroad Co. v. Boydston, 57 Ohio St., 642.
    The position of our Ohio Supreme Court, as to the duty of the railroads and what is gross neglect, is shown in the case of Railway Co. v. Margrat, 51 Ohio St., 130.
    This case is a good index to the law of Ohio, that, running an engine and trains, where people are expected to be at a crossing, employes or others, without an outlook, or a bell or whistle signal in time that the person warned, may get out of the way, is gross negligence. In 34 N. Y., it was held that a presumption exists that a signal would have benefited the injured party. In Thompson v. Railway Co., 110 N. Y., 636, it was held that giving of signals does not relieve the company of imputation of negligence if it was negligent in other respects, as by running a train at a dangerous speed under the circumstances of the case.
    If the company through its agents and servants has reason to know that persons are on its tracks at any particular place, it is negligence to run at great speed. Cooper v. Railway Co., 66 Mich., 261; Railroad Co. v. Esley, (N. J. C. of Errors and Appeals) 32 Am. & Eng. R. C., 94; 2 Kent, 560.
    Negligence, even when gross, is but an omission of duty. It is not designed and intentional mischief. Railway Co. v. Munger, 5 Denio, 255.
    Beach defines it as “exceeding negligence, inadvertance in the superlative degree.” Railroad Co. v. Levy, 19 L. R. A., 480.
    Beach on Contributory Negligence, admits, Sec. 63, that a line of cases, of which an Ohio (Kerwhacker v. Railway Co., 3 Ohio St., 172) case is first cited, sustains the doctrine, “that when the defendant’s negligence, either in faciendo or in non-faciendo, amounts to gross negligence, the contributory negligence of the plaintiff will not prevent recovery.”
    The word willful has been construed in Kentucky, under a statute allowing punitive damages in cases of willful negligence, etc., under that statute in Board of Int. Imp. v. Scarce, 2 Duv., 576, being against a turnpike company, to have bridges, etc., the court held that “willful neglect of this duty means a knowledge of the insufficiency of its bridges and voluntary failure to remedy the defect, and such defect, discoverable by ordinary vigilance, might authorize the presumption of such knowledge and neglect.”
    Kentucky before the statute, in Railroad Co. v. Collins, 2 Duv., 114, the injury was to a laborer under the orders of the engineer, and the court in the opinion not only defines incidentally “gross negligeuce” as being “want of proper care” but also clearly adopts the Ohio rule of Railroad Co. v. Schade, supra, and other cases in these words: “but had the appellee (plaintiff) been guilty of negligence, nevertheless the injury might have been avoided by the proper care of the engineer, and is therefore attributable to his gross negligence. Railway Co. v. Davis, 18 Ga., 679; Augusta, etc., v. McElvaney, 24 Ga., 75.
    Even in Massachusetts, which adopts the New York and English rule of imputed negligence, it was held that where a child “trespasses on premises of defendant, is injured by something he does while trespassing, he can recover for wanton or recklessly careless conduct of defendant.”
    Beach admits, Sec. 141, that “the position of the Supreme Judicial Court of Massachusetts upon the general question of contributory negligence as well as upon that branch of it affecting infant plaintiffs, is not a satisfactory one. It has taken extreme ground upon almost every point.” Company v. Brewly, 83 Ala., 371; Inland Co. v. Tolson, 139 U. S., 551; Nathan v. Railroad Co., 118 N. C., 1066; Baker v. Railroad Co., 118 N. C., 1015; Railroad Co. v. Gentry, 163 U. S., 353; Hall v. Railroad, 13 Utah, 244.
    A man is not without remedy because he failed to look at the precise time and place when and where to look would have been of most advantage. Rodrian v. Railway Co., 125 N. Y., 526. In Railway Co. v.
      Hanna’s Admr., our Supreme Court affirmed a judgment where there was no evidence of looking, traveling three-fourths of a mile, on a curve. Kenzon v. Railroad Co., 5 Hun, 479; Green v. Railroad Co., 11 Hun, 333.
    In a case decided by the New York court of appeals January 10,1900, reported in Chicago L. N., January, 1900, p. 195, Bartlett, J., said: “Even if contributory negligence is assumed for the argument’s sake, the question remains whether the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence.”
    The court cites to that proposition a great number of authorities, among them Grand Trunk Ry. v. Ives, 144 U. S., 409, and this is about the latest enunciation of the highest New York court, a court contrary to Ohio and the U. S. Supreme Court, and the mass of states on the burden of proof as to contributory negligence. Railroad Co. v. Anderson, 8 O. F. D., 630 (75 Fed. Rep., 811), U. S. C. of Appeals, N. D. Ohio; Railroad Co. v. Jackson, 10 Am. & Eng. Ry. Cas., 497; Hanton v. Ingram, 3 Iowa, 81; Malmsten v. Railroad Co., 8 Am. & Eng. Ry. Cas., 291.
    Beach on Contributory Negligence admits, Sec. 37, that the Massachusetts rule in Banks v. Street Ry. Co., 136 Mass., 485, and Parker v. Naesan, 59 N. Y., 402, that even the unlawful character of plaintiff’s act in addition to the fact that it contributed to produce the injury is not sufficient to excuse the defendant where the negligence of defendant amounts to willfulness, or a reckless disregard of another’s rights, or acted wantonly. Railroad Co. v. Biggs, 85 Ill., 80; Kerwhacker v. Railroad Co., 3 Ohio St., 183; Railroad Co. v. Smith, 22 Ohio St., 244; Black on Law and Practice in Accident Cases, Sec. 322; Black, last part of Sec. 19; Railroad Co. v. Martin, 23 So. Rep., 231.
    We have endeavored to cite leading cases as to the rule when in the two situations contributory negligence is no defense, and. to-day the universal rule.
    On care of deceased. While the evidence of Parrish cited, showing the boys heard the rumbling of the train, and looked back, and also the evidence of the engineer and the fireman, showing they looked back, proves watchfulness on the part of the boys, as is also shown by the inquiry, by deceased as to where the local was before starting, still as to the time prior to the time mentioned by Parrish and engineer and fireman, the presumption is, that the boy used all due care. McBride v. Railroad Co., 19 Ore., 64; Railroad Co. v. Obrien, 161 U. S., 452; Railroad Co. v. Whitton, 80 U. S. (13 Wall.), 275; Allen v. Wiliard, 57 Pa. St., 379.
    Contributory negligence. The burden of established contributory negligence of plaintiff is on defendant, in Ohio, the United States Supreme Court, the courts of England, and all the states, except Massachusetts, New York, Indiana, Michigan, Iowa, Connecticut, and perhaps one or two others. Originally Oregon and North Carolina also ranged with these. Schweinfurth v. Railway Co., 60 Ohio St., 223 ; Beach on Contributory Negligence, Secs. 426, 439.
    In states where this rule maintains the absence of negligence is presumed from the love of life. Black, pp. 9 and 33. In cases of doubt the presumptions are against any fault on the part of people from known disposition of men to avoid injury. Black on Pleadings & Proof, etc., Sec. 7 and notes, and pp. 9, 13; Beach on Contributory Negligence, Sec. 426; 31 Md., 357; Gaynor v. Railway Co., 100 Mass., 208; Johnson
      v. Railway Co., 20 N. Y., 65 (later reversed in New York and Massachusetts).
    In the absence of testimony it is presumed that the person killed, looked and listened. 7 Western Reporter, 324; Wynning v. Railway Co., 64 Mich., 93; McBride v. Railway Co., 19 Oregon, 64.
    It is presumed that the deceased exercised due care. Schum v. Railway Co., 107 Pa. St., 8; Railway Co. v. Hall, 61 Pa. St., 366; Railway Co. v. Crawford, 24 Ohio St., 636; Railway Co. v. Nolthenius, 40 Ohio St., 376.
    The language of Beach on Contributory Negligence, probably the most open advocate of every principle to the contrary, in Sec. 426 of his work, cited, demonstrates the strength of this position in our courts. “That the presumption being in favor of the plaintiff, that he was, at the time of the accident, in the exercise of due care, and that the injury was caused wholly by the defendant’s negligent misconduct,” is the doc-. trine of the Supreme Court of the United States and of nearly all the states of the union including Ohio.
    Other authorities have been cited which are still more specific as to the presumption of care, as an element of evidence.
    The .allegation of care is no more necessary in pleading than is proof even in New York and Massachusetts, which have the other rule as to burden, except in Pennsylvania, Iowa and Indiana. Fuller v. Railway Co., 133 Mass., 491; Lee v. Gas-Light Co., 98 N. Y., 115.
    The principle of the decisions in New York and Massachusetts is not the correct or logical one followed in Ohio, and states in which the rule as to burden is as stated. Sherman & Redfield (5 ed.), Par. 109; Railway Co. v. Kerr, 62 Pa. St., 361; Gay v. Winter, 34 Cal., 153; Bank v. Seymour, 64 Mich., 64;
      McBride v. Railway Co., 19 Ore., 65; Willard v. Tathan, 57 Pa. St., 374.
    While we claim that the ordinance was duly published under the proof, the provision requiring publication is directory, not mandatory, and a compliance with it, is -not a condition precedent to the validity of an ordinance. Commonwealth v. Davis, 140 Mass., 485; Commonwealth v. McCaferty, 145 Mass., 384; Sacramento v. Dilmen, 102 Cal., 107.
    The statute requiring an ordinance to be authenticated by the signature of the mayor, is merely directory; Blanchard v. Bissell, 11 Ohio St., 96; Stevenson v. Bay City, 26 Mich., 44; Martindale v. Palmer, 52 Ind., 411; McKinzie v. Woodey, 39 La. Ann., 944.
    That the question is open to proof- and disproof, and the certificate only prima facie is shown in the last sentence of Sec. 1697, providing for publication by posting up, to-wit: “Such certificate shall be prima facie-that the copies were posted up as required.”
    Section 1699 says, “transcripts of any by-laws, resolutions or ordinances, certified by its clerk, shall be received in evidence for any purpose for which the original books, ordinances, etc., would be received.”
    It is true, as courts often say, no person would be injured on a railroad, if he did not go upon it. Any other rule would reverse a case, if the employe went upon the track at all, as in Railway Co. v. Margrat, 51 Ohio St., 131, where admittedly Margrat could have seen the engine coming, and avoided the injury. Dick v. Railway Co., 38 Ohio St., 389; Meek v. Railway Co., 38 Ohio St., 631.
    We cite authorities in some states generally favorable to corporations: Fulliam v. Muscatine, 70 Ia., 436; Emporia v. Schmidling, 33 Kan., 485; Spearbraker v. Larrabee, 64 Wis., 573; Millcreek Tp. v.
      Perry (Pa.), 12 Atl. Rep., 149; Lowell v. Watertown, 58 Mich., 568.
   Davis, J.

In the theory of this case which seems to have been entertained by the trial court, there are several radical errors. Nearly all of them result from a misconception of the relation of the deceased to the plaintiff in error. That he was an employe of the railway company is not disputed; but at the time of the accident his position and his conduct were not within the scope of his duty. He was on the main track with the speeder for his own convenience and under circumstances which made his presence there uncalled for and dangerous in the extreme. Such acquiescence in the occasional use of the speeder by the deceased and his father, as may be implied in this case, at best, amounts to no more than a permission for that purpose, and constituted the deceased a bare licensee. The company did not object to the use of the speeder, if it knew of it, nor did it offer any inducement or invitation therefor. 2 Thompson Negligence (2 ed.)j Secs. 1722, 1723. The deceased took the license with its concomitant perils. The acquiescence in th'e use of the track with a speeder did not involvq an undertaking on the part of the company to modify its rights as to the user of its own property; nor could it change its obligations to the public as a common carrier of passengers and freight. The trial court in this case, not without some warrant of authority it must be admitted, took the view, and so instructed the jury, that it was the duty of the railway company to exercise reasonable care, not only to avoid injury to the deceased after it discovered him upon the track, but that it was its duty to keep a careful lookout to discover and avoid injury to any person who might happen to be on its track at that place and at that time, and that this duty was implied in the license to the deceased and his father. It was in this view, apparently, that the court refused to give to the jury the defendant’s first request to charge, and instructed the jury instead that the defendant “had a right to run its cars at the time and place of the accident at any speed and in any manner 'consistent with safety which was necessary in the conduct of its business in the usual and ordinary manner, taking into consideration, however, all circumstances surrounding the locality, and having a due regard to the safety of persons who might be upon its tracks. It was required to use ordinary care in running its train, having due regard to the rights of others.” Such a conception of the law is opposed to reason because a bare licensee must know that his license is subject to all the risks incident to the use of the track by the company, in the same manner in which it was used at the time the license was granted, and that the company assumes no new obligation or duty toward him. Therefore, the company owed him no duty of active vigilance to especially look out for and protect him. Railway Co. v. Aller, 64 Ohio St., 192; 3 Elliott on Railroads, Sec. 1250. It is believed that it is also contrary to the weight of authority. 3 Elliott on Railroads, Secs. 1250, 1251; 2 Thompson Negligence (2 ed.), Secs. 1709, 1711, 1712, 1723, 1724; Railway Co. v. Vittitoe’s Admr. (Ky.), 41 S. W. Rep., 269. It may be added here, that the rule is substantially the same as to trespassers and mere licensees, that is, licensees without invitation or inducement. An employe who goes upon the track or elsewhere upon the company’s premises not in the line or discharge of his duty, and without any invitation, express or implied, is at most a mere licensee to whom the company owes no duty to keep such place safe. 3 Elliott on Railroads, Sec. 1251, and cases cited; 1303 and cases cited; Railway Co. v. Marsh, 63 Ohio St., 236; Baker, Admr., v. Railway Co., 95 Iowa, 163; Railroad Co. v. McKnight, 16 Ill. App., 596; 1 Thompson on Negligence (2 ed.), Secs. 945, 946.

The doctrine of Harriman v. Railway Co., 45 Ohio St., 11, does not apply here, because there is in this case no pretense of acquiescence in the public use of the railway track in the way in which it was used by the deceased, nor was there any invitation or inducement held out to the deceased to so use it. There Avas at most only a failure to object to such user. We cannot think, therefore, that the trial court was right in instructing the jury as it did in this regard, and in refusing to instruct as requested in the defendant’s first request.

In this connection we will consider the instructions of the court to the jury in regard to signals. Seemingly having in mind the erroneous’ theory criticised above, the trial court called the attention of the jury to the fact that evidence had been introduced by the plaintiff tending to show that the defendant had neglected and failed to give the statutory signals required oñ approaching and passing a public cross-' ing, and the jury Avere instructed that it was for them to determine, from the evidence, whether such signals were given or not, and that their conclusion on that subject would be one of the elements which they should consider in determining whether the defendant was guilty of negligence that produced, in whole or in part, the death of the deceased; and further, that the deceased was bound to use reasonable precautions to detect the approach of trains, and was bound to know that the defendant might run a train over the road at that point at any time, “unless lulled into a feeling of security by the failure of the defendant’s employes, in charge of its train, to observe the statutory regulations and rules of the company in the matter of running and management of the train, at the time and place of the accident and under the circumstances shown by the evidence.” It was also charged that the deceased, while in the employment of the company, and when at or near a public street crossing, had a right to expect the performance of that duty. The accident did not happen at or near the crossing, but more than six hundred feet west of it, and not while the deceased was crossing the track, but while he was traveling longitudinally upon it. Independently of the theory of liability to a bare licensee, Avhich we have already discussed, this raises the question whether the statutory duty to give signals when approaching a crossing, inures to the benefit of persons on the track and not at a crossing. The statute obviously is not for the protection of 'persons, who are not crossing the track or about to do so; for not only is the whistle to be sounded before reaching the crossing, but the bell is to be continuously rung until the crossing is passed. The signals are not required at any other time. This* is the construction which has been adopted in several jurisdictions Avhere the question has arisen. It Avas fully considered and distinctly decided in Railroad Co. v. Depew, 40 Ohio St., 121, 127-129. Also in the following cases: O’Donnell v. Railroad Co., 6 R. I., 211; Harty, Admr., v. Railroad Co., 42 N. Y., 468; Williams v. Railroad Co., 135 Ill., 491; Railroad Co. v. McKnight, 16 Ill. App., 596; Rohback v. Railroad Co., 43 Mo., 187; Toomey v. Railroad Co., 86 Cal., 374; Hale v. Railroad Co., 34 S. C., 292; Railway Co. v. Gravitt, 93 Ga., 369; 2 Thompson on Negligence, (2 ed.), Sec. 1707. There being no legal duty, in that regard, due from the defendant to the deceased, this' instruction to the jury was erroneous.

Up to this point, we have endeavored to consider the questions of law which were under review without complicating them with the subject of contributory negligence. It becomes necessary now to look at that phase of the case. The cpurt refused to instruct the jury as requested in the defendant’s fourth request. This instruction was sound and ought to have been given. If it were found to be true that the deceased chose to travel with the speeder upon the main track for no reason connected with his employment, other than his convenience; that he rode down the main track with a companion, on the speeder, in violation of the order of his superior, the station agent; that from the station to the south switch light there was a “passing track” on which he could have placed the speeder and easily and with absolute safety have reached his destination, and that instead of doing so he chose to go down the main track, without keeping' any lookout behind him, there can be no doubt that he was guilty of negligence which proximately contributed to his own injury, unless the defendant could have avoided the injury after discovering the deceased upon the track. The authorities sustaining this proposition are so numerous that it would be prae: tically impossible to cite them all here. We content ourselves with citing a few pertinent cases and leading text writers, with the cases collected and cited by them: 3 Elliott on Eailroads, Sec. 1303, and cases cited in notes thereto; 2 Thompson on Negligence, (2 ed.), Secs. 1734, 1738, 1747, 1748 and 1774, and eases cited in notes thereto; Ream v. Railroad Co., 49 Ind., 93; Railroad Co. v. Depew, 40 Ohio St., 121; Burling, Admx., v. Railroad Co., 85 Ill., 18. It will he seen from these authorities that the instruction, as requested, states the law more strongly against the company than was necessary. It makes the qualification that “unless the jury shall further find that the defendant’s agents and employes * * * could have avoided said accident after they became aware of the presence of the said Arleigh J. Mead, upon said' track.” Strictly speaking, the law would require the defendant, after discovering the deceased to be upon the track, to use reasonable care under the circumstances to avoid the accident, not absolutely to avoid it; but this being an error against the party asking the instruction, it should not have been refused for that reason. Besides, the instruction which was asked, specifically challenged the attention of the jury to some very important circumstances affecting the claim of contributory negligence, and the error of refusing this is nowhere cured in the charge as given.

Again, the defendant asked the court to charge the jury that the plaintiff could not recover on account of, or by reason of, any negligence on the part of James H. Mead, the father of the deceased, at that time the agent of the defendant; and also that plaintiff could not recover for any pecuniary loss suffered by the father of deceased, on account of the death of his son, if the jury should find that the father was guilty of negligence directly contributing to the death of his- son. These requests were refused. There was, it is true, no issue in the pleadings upon this subject; but the court did charge the jury that “in arriving at the total amount of damages in the case, the jury should consider the pecuniary injury to each separate beneficiary, but the verdict should be for a gross sum not exceeding ten thousand dollars,” and that “what has each separate beneficiary lost in money in the death of Arleigh J. Mead, will be your inquiry.. First determine the value of his life to the father, next the value of his life to his mother,” etc. Having done this and having given the jury the plaintiff’s requests, numbered 13 and 19, the defendant’s request that the jury should also be instructed that the plaintiff would not be entitled to recover for any pecuniary loss of the father, if the jury should find that the father was, guilty of negligence directly contributing to the death of the son, could not properly be refused. Wolf, Admr., v. Railway Co., 55 Ohio St., 517.

The trial court and the counsel for the defendant in error seem to have entertained the view that the question raised concerning the ordinance of Buckeye City, related to the validity and effect of the ordinance; but the issue in the pleadings was as to the legal passage and existence of the ordinance. The evidence to show the existence of the ordinance was clearly incompetent and insufficient, and the charge of the court did not cure the error of admitting it. It left the ordinance with the jury, as if it were a proven fact, instructing them that it was a circumstance to be taken into consideration, “in connection Avith all other facts and circumstances, in determining whether the defendant was negligent in the running of the train in the manner in which you find the evidence shows it was run at the time and place of the accident; and also in determining whether the deceased was guilty of negligence that contributed to cause his death.” Nothing more needs to be said on that subject.

Another manifest error was the sending of the hook of rules to the jury to be used by them in their deliberations, only a few of the rules having been offered in evidence. Upon this record we would not reverse for that error, because it does not clearly appear that the company was prejudiced thereby; but we mention it in order that we may not seem to have approved it, and for the guidance of the trial court hereafter.

The judgments of the circuit court and the court of common pleas are

Reversed.

Burket, Spear, Shaudk and Price, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The State of Ohio ex rel. Guilbert, Auditor, v. Yates, Auditor of Pickaway County.

      County officers not local officers — But part of state organization —Subject of compensation not one of local nature — Must be uniform, thoughout the state — Section 26, Art 2 of Const. —Invalidity of acts of April 22, 1896 and March 29, 1898— Constitutional law.

    1. County officers are not local officers, but are a part of the permanent organization of the government of the state, and the subject of compensation to county officers is not local in ics nature, and an act of the general assembly upon that subject ■ is' a law of a general nature which must operate uniformly throughout the state. Pearson et al. v. Stephens et at, 56 Ohio St., 126, overruled.
    2. The “act relating to the duties and compensation of certain county officers in Pickaway county,” passed April 22, 1896 (92 O. L., 597), and the act amending sections 1, 2, and 5, thereof, passed March 29, 1898 (93 O. L., 507), are unconstitutional, being in conflict with the first clause of section 26, article 2, of the constitution.
    (Decided June 24, 1902.)

      Error to the Circuit Court of Pickaway county.
    A petition in mandamus was filed in the circuit court of Pickaway county, praying that a writ of mandamus may issue, commanding the defendant as auditor of Pickaway county that he proceed according to law and collect for his fees, compensation and salary those provided for under the following sections of the Revised Statutes, to-wit: 1070, 1071, 1072, 1073, 1074, 1075, 1076, 1077, 1078, 1365, 2775, 2774, 2785, 2888, 2908, 4903, 6909, 7382, 7387, and that he cease to draw from the treasury any salary, fees or compensation or perquisites provided for in the act passed April 22, 1896 (92 O. L., ,597), and the act passed March 29, 1898 (93 O. L., 507), and to treat such acts as nullities and to observe the forms prescribed by the auditor of state and to observe the instructions and constructions of the general statutes of the state named, and to report to the auditor of state by certified statement of the amount of fees and moneys received or due the county treasurer, recorder, sheriff, prosecuting attorney, probate judge, commissioners and clerk of the court of common pleas, etc.
    The judgment of the circuit court was in favor of the defendant in error.

      Mr. J. M. Sheets, attorney general, and Mr. J. P. Bradbury and Mr. F. S. Monnett, for plaintiff in error.

      Mr. Irvin F. Snyder, for defendant in error.

      Mr. Charles Qerhardt, for defendant in error.
    [Briefs were submitted by counsel on both sides but the main points presented by each are sufficiently indicated in the opinion. — Reporter.]
   Davis, J.

These acts are undeniably special; and, to us at least, it seems almost as manifest that their subject-matter is of a general nature, and that neither of them contains the attributes of legitimate local legislation. They are special, because they are in terms restricted in their' operation to Pickaway county. They are of a general nature, because the subject of legislation is a matter of general concern to the state, and to every county in the. state and to the inhabitants thereof. Kelley v. State, 6 Ohio St., 272. They are not legitimate local bills, because the' subject-matter is not peculiar to the localities named and it does not appear that there was any necessity for such legislation either in time, place or circumstance. Having said this, we have said, in substance, all that needs to be said to dispose of this case; but in deference to the authority which is urged in support of the contention of the defendant in error, 'we will be more explicit.

It should be premised that we do not feel bound by previous decisions of this court when they do not commend themselves to us by essential soundness; and this is especially so when constitutional limitations are involved. No amount of wrong adjudication can justify a practical abrogation of the constitution. We may well pause and consider carefully when we find our views to be in conflict with those entertained by our predecessors; but if it be found that the conflict is honestly irreconcilable, there is but one course to take, and that is to follow our own convictions. The obligation of a judge is that he will support the constitution, and that he will faithfully and impartially discharge and perform all the duties incumbent on him as such judge, according to the best of his ability and understanding, and not according to the authority and understanding of some other person or persons, however great or however numerous.

Almost the whole of the argument in favor of the validity of these statutes is grounded on the line of decisions beginning in Cricket v. State, 18 Ohio St., 9, 22, and culminating in Pearson v. Stephens, 56 Ohio St., 126. The initial case was an action against a county auditor and his sureties to recover money which it was alleged had been received as fees without authority of law. There had been no attempt at local legislation, and no statute was cited, which was even claimed to be local in its operation. There were two general laws under review. Both of the distinguished counsel had been judges of this court; and it is not disparagement of the able men who then constituted the Supreme Court to say that either of the counsel was the peer in ability of any of them. Yet it was not even suggested in argument so far as we can discover, nor was it involved in the case, that the compensation of a county officer was in its nature local. The eminent lawyer who represented the plaintiff in error assumed, and it does not seem to have been disputed, that the statutes then under consideration were general laws; but he contended that they were not uniformly operative throughout the state, and that they were therefore void. He said: “The laws under consideration relate to counties and their organization, and to the compensation of an officer common to them all. I do not doubt that a salary might be provided for auditors graduated upon population; but I do deny that a part can be compensated with salaries and a part with fees, or that a part can be given one salary, and, under exactly the same conditions the other part another. In other words, different regulations may be prescribed for different things, but no two regulations for the same thing. These acts do that very thing; they attempt to give a different compensation to auditors in counties having the same population and performing the same duties.” This language clearly expresses the constitutional question which was presented, and we cannot help thinking that it was not fairly met by the court, in that case. The question was put out of the case by the court’s construction of the act of 1862. It was at this point that White, J., injected the famous dictum which became the point of departure from the constitution. “And for myself, I will say that it seems to me the amount of compensation to be attached to a local office, is a question in its nature local, and that a law to regulate such compensation cannot properly be regarded as a law of a general nature.”

One false premise underlying this proposition, and it reappears in the opinion by the. same judge in State ex rel. v. Judges, 21 Ohio St., 10, 11, is the assumption that a county office is a local office. County and township organization is provided for by article 10' of the constitution. The general assembly are therein required to provide by law for the election of such county and township officers as may be necessary. Can it properly be inferred from this that the general assembly may deem it necessary to provide for county and township officers in only one or more counties or townships? Manifestly not. The constitution contemplates county and township organisation throughout the state, and, by Sec. 26, Art. 2, it imposes on the general assembly the duty of making it uniform throughout the state. Such offices, therefore, are local only in the sense that the legislature has provided for their election by the people of the respective counties or townships, and that their duties are to a large extent circumscribed by the county or township boundaries. They are constituent parts of the scheme of permanent organization of the government of the state.' As such the legislature is required by Sec. 20 of Art. 2 to fix the compensation to be attached to the office. It was said by Scott, J., in Walker v. Cincinnati, 21 Ohio St., 50, 51, that “this clause cannot be regarded as comprehending more than such offices as may be created to aid in the permanent administration of the government.” It cannot include merely local agencies of the government, for such agencies are merely adventitious and temporary, and compensation to them must be provided for with the occasion which calls for their creation. There does not seem, therefore, to be solid ground for Judge White’s assumption that a county office is a local office, from which assumption he draws his conclusion that a law to regulate the compensation attached to a local office (i. e., a county office), is a local law. With just as much reason it may be argued that all laws relating to the filling of vacancies in county offices (Sec. 27 of Art. 2 of the constitution) are local laws, from which it would follow that there may be as many ways of filling vacancies in county offices as there are counties in the state. If the theory propounded here is correct, that these salary bills are constitutional as local laws, then there may be as many modes of compensating county officers as there are counties in the state, notwithstanding the provisions of the constitution, Sec. 26, Art. 2, which the framers of the constitution believed to be an effective safeguard against the evils of special legislation. To show that the danger to the state, which is spoken of above as a possibility, is likely soon to be an accomplished fact, a tabulated statement of the special salary bills already enacted is here given:

There is abundant food for study, for both lawyers and legislators, in the statistics shown in this table; but we linger over it only long enough to remark that: 1. Already more than half the counties of Ohio have special laws regulating the compensation of county officers by salary, while the other half compensate by fees. 2. In the counties compensating by salary neither the officers provided for, nor the salaries, are uniform. 3. In many counties, for example Pickaway, some of the county officers are compensated by salary and others by fees. Whether the inequalities which appear here can be totally eradicated by general legislation, we are not called upon to determine. Perhaps it might be accomplished, as suggested arguendo by Judge Ranney in Cricket v. State, by compensation graduated upon population, or perhaps, by compensation graduated upon the income of the office, or again through the medium of a state board or commission whose duty it would be to regulate compensation; but it must be borne in mind that the uniformity in compensation which is required, is not uniformity in the total amount received, but uniformity in the rate of compensation, that is, that the same compensation shall be paid for the same service. So that it would seem that the suggestion in the opinion, in Pearson et al. v. Stephens, 56 Ohio St., 131, that general legislation upon this subject would result in “as many different rules upon the subject as there are counties within the state,” and that it would end in the evil which the provision against local legislation was designed to prevent, is unsound. However, whether the discrimination against special or local legislation, in the constitution is ineffective or not, does not concern us in the present discussion. That is a problem to be worked out by the general assembly. We are satisfied at all events that the loose construction of the constitution in which this court has heretofore indulged, is in part responsible for the abnormal condition of things shown above and we feel disposed to distinctly and finally repudiate it now. The case of Hart v. Murray, 48 Ohio St., 605, is merely an affirmation of the theory stated by Judge White in Cricket v. State, and State v. Judges, which we have already considered.

We come now to Pearson et al. v. Stephens, 56 Ohio St., 126. Counsel for the defendant in error are at some pains to emphasize the inconsistency between the opinion of this court in that case, and one of the arguments for plaintiff in error here, the opinion and argument being the production of the same person. We concede that the opinion in Pearson et al. v. Stephens, states the case for the defendants in error here as strongly as it may be put; but after full consideration we prefer the judgment of Philip in his latter condition. The brief of the eminent counsel makes it entirely clear, if indeed any comment was needed to make it clear, that in its final analysis the decision in Pearson et al. v. Stephens, rests altogether on the observation of White, J., in Cricket v. State. He also makes it clear that the court as then constituted, entertained doubts concerning the question whether this was a subject which must be regulated by general law, operating uniformly throughout the state, and that, therefore, the problem was resolved in favor of the constitutionality of the statute. A majority of the court considering this case entertain no such doubt, and, while freely admitting that the future may possibly develop conditions which may demonstrate that the conclusions now reached are erroneous, yet with all the light which we now have, we are constrained to, and do unhesitatingly, overrule the case of Pearson et al. v. Stephens, because the doctrine therein declared, that local legislation on the subject of the compensation of county officers is constitutional, is exactly the opposite of our deliberately formed convictions.

The judgment of the circuit court is

Reversed.

Burket, Shaucic and Price, JJ., concur.