author: Bradbury. J.

text:
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Kernochan Adm’x.

      Risks assumed by one in hazardous employment — Contributory negligence — Fellow servants — Bill of exceptions — Entry, how properly made — Bill of exceptions erroneously dissmissed — Judgment of affirmance by the court below, reversed by this court, when.

    1. One who engages in a hazardous employment assumes all risks incidental thereto ; but is not bound to anticipate1 such dangers connected therewith, as arise solely from the negligence of others, not in law his fellow servants ; and therefore his failure to foresee and guard against dangers of the latter class, does not raise against him, nor his personal representatives, a presumption of contributory negligence.
    2. An entry in the following terms: 1 ‘This day came the defendant and filed its bill of exceptions, duly allowed, signed and sealed, and the same at its request is ordered to be made a part óf the record in this case, all of which is done within the fifty days allowed, ” made on the journal of a court of common pleas, shows with sufficient certainty that the bill of exceptions therein referred to, was. presented to, and signed, sealed and allowed by, the trial judge.

      3. Should a circuit court erroneously dismiss, or erroneously decline to consider, a bill of exceptions on the ground that it had Dot been legally allowed, and thereupon affirm the judgment below, such judgment of affirmance will be reversed by this court, without passing on any question arising out of the bill of exceptions, and the cause remanded to the circuit coui’t with instructions that it consider and decide all questions that may arise out of the same.
    (Decided December 1, 1896.)
    Error to the Circuit Court of Crawford county:
    This action was commenced in the court of common pleas of Crawford county by the defendant in error, to recover of the plaintiff in error damages for the death of the intestate, her husband, caused, as she alleged, by the negligence of the plaintiff in error.
    She prevailed in the court of common pleas ; the judgment there rendered in her favor was affirmed by the circuit court. Whereupon the present proceedings were brought in this court to reverse both judgments. The facts will be stated in the opinion of the court.

      I). Dirían; Goidder & Holding and John T. Dye, for plaintiff in error.
    The court erred in overruling demurrer to amended petition.
    The allegation in plaintiff’s petition that decedent stopped upon the track before the backing train and while so standing there, in the dark and obscurity' occasioned by another passing train, emitting steam, ringing its bell, and making such noise to drown the noise of the backing train; this as being on the yard tracks, and he being a employe of the Pennsylvania Company, put decedent in the attitude where it was a part of his duty to observe and know the location of the working trains within the yards, and the allegation that he was run down by a backing train while standing on the track behind it, is a clear allegation of his own contributory negligence. We urge that the principles laid down in R. R. v. Barber, 5 O. S., 541, are applicable to the pleading in the case at bar. That it being his duty to observe the situation, condition, and movements of the trains in the yard, plaintiff below, in her pleading must not only show that he did not know and observe and keep out of the way, but as in the case above cited, she must show that he was not in fault in not knowing. Railroad Co. v. Nolthenius, 40 Ohio St., 376; Coal & Car Co. v. Norman, 49 Ohio St., 598 ; Railroad Co. v. Snyder, 24 Ohio St., 670.
    The circuit court erred in refusing to recognize the bill of exceptions as a part of the record and considering and passing upon the errors appearing therein.
    The allowance of the bill of exceptions must be governed by sections 5301 and 5302 of the statute as they stood at the commencement of this action. Hence, 5301 as it now stands does not apply. See par. 79, Rev. Stat., and State v. Rabbits 46 Ohio St., 178, but it does apply as passed April 19, 1893, Vol. 90, 203, and section 5302 as passed March 22, 1892, Vol. 89, 125.
    The form of this order is one that has been in use in the courts of this state since the adoption of the code, and I have not heretofore known of this form having in our courts been in any way criticised. Shillito v. Thacker, 43 Ohio St., 63.
    Since the case of Bothe v. R. R., 37 Ohio St., 147, and Mitchell v. Thompson, 40 Ohio St., 110, and even before that, it had and has become pretty well understood that where a thing has been done and the party has fully performed his duty, he cannot be sacrificed to the blunders of court officials. Under the liberal constructions provided by the Code immaterial variances are to be disregarded.

      P. W. Poole and Finley, Beer c& Bennett, for defendant in error.
    The reason of the circuit court for finding that a bill of exceptions was not duly allowed and signed does not appear in the record, and counsel for the railway company took • no steps to make it appear.
    The criticism of the circuit court appears in the entry upon its journal. If it made any further criticism to the hurt of the railway company, which this court might or could .review, the plaintiff in error should have preserved it in a bill of exceptions.
    At the time of the trial the statute required the party excepting to the overruling of a motion for a new trial because the verdict is against the law and. the evidence to reduce his exceptions to writing and present the same to the trial judge for allowance within fifty days after .the overruling of the motion for a new trial; 90 Ohio Laws, 204; 89 Ohio Laws, 125.
    The entry states that “the defendant filed its bill of exceptions duly allowed, signed and sealed.” This is the conclusion of the clerk of the court.
    There is no entry showing that the bill of exceptions was tendered, or presented, to the trial judge, that he found it to be true, that he allowed and signed it.
    The clerk states that the defendant filed its bill of exceptions, and states further his opinion that it had been “duly allowed, signed and sealed.”
    The unauthorized, unofficial statement of the clerk that a bill of exceptions had been duly allowed and signed, not being the act of the court, is no part of the record. Baker v. Swift, 87 Ala., 530; Hill v. Bassett, 27 Ohio St., 507; Heffner v. Moyst, 40 Ohio St., 113.
    The paper writing purporting to be ■ a bill of exceptions, signed by Judge Smalley, March 3rd, 1894, and which is printed in the Record, is not shown by any entry on the journal of the court of common pleas to have been tendered to, allowed or signed by the trial judge or any other judge. It is an unauthenticated paper which the railroad company dumped into the case “by main • strength.” It cannot substitute it for the bill of exceptions filed March 16th, 1894, which it has abandoned. Bowen v. Gazlay, 8 C. C. Rep. 256; Shillito v. Thacker, 43 Ohio State, 63; Wagner v. Zeigler, 44 Ohio State, 59. The circuit court “find no error in the record in the court below. The reason given by the court is no part of the.action of the court. The reason may be a bad one or a good one — no difference which — yet the finding is that there is no error in the record in the court below, and it is therefore considered that the judgment of the court of common pleas be and the same hereby is affirmed. The reasons announced by the court to sustain its decision constitute no part of the decision. Bank v. Table Mt. Co., 12 Cal. 408; Davidsons. Carroll, 23 La. Ann. 108; 1 Freeman on Judgments, sections 2, 249; Davis v. Millandin, 17 La. Ann. 15; 87 Am. Dec., 5, 7; 27 S. C., 472; 49 Texas, 243; 2 Thompson on Trial Section 2781.
    In the absence of a bill of exceptions it will be presumed that evidence was offered, if any was necessary, to show that a bill of exceptions was not allowed, if the fact does not appear upon the face of the record. The evidence may have been objectionable, and if it had been objected to, excluded ; but the plaintiff in error could waive all objections to the manner of proof. Whether the evidence was legitimate or whether it was sufficient, the court decided.
    Broom’s Legal Maxims, 100. “This is a maxim of the common law, and the dictate of common sense.” Shepherd v. Jones, 71 Cal., 223; S, C. 16 Pac., 711; Whisler v. Lawrence, 112 Ind., 229; S. C. 11 West., 238; State v. Shea, 95 Mo., 85; S. C. 14 West. 747; Chicago v. Porter, 72 Iowa, 426; S. C. 14 West. 362.
    Where the evidence is not in the record the court will not reverse, if on a supposable state of facts, the rulings of the court were right, B. & O. R. R. Co. v. Bowen, 104 Mo. 88; C. H. & I. R. R. Co. v. Clifford, 113 Ind. 460; S. C. 13 West., 384; 2 Thompson on Trials, § 2777. It will be assumed in the absence of proof to the contrary that every fact essential to the validity of the judgment was proved in the court below. Pilcher’s Succession, 39 La. Ann., 362; Miller v. Cappel, 39 La. Ann., 881; Jones v. Adams, 19 Nev. 78; Stevens v. Rose, 13 West. 765; Thompson v. Reno Sav. Bank, 19 Nev. 293.
    Where the appellate court has no means of ascertaining from the record the state of facts upon which a verdict was rendered, the action of the lower court with respect thereto must be presumed to have been right. Wright v. Smith, 81 Va., 777.
    Upon the disposition of the motion against the alleged bill of exceptions, the circuit court was the trial court, and every presumption is in favor of the correctness and regularity of the trial court, and error cannot be presumed. Bedford v. Ruby, 17 Neb., 98; Latham v. Schaal, 25 Neb., 535; S. C. 41 N. W., 354; Pardy v. Montgomery, 77 Cal. 326.
    It must be assumed upon review, where it is not shown to the contrary, that the court in admitting evidence, had proof of the matters essential to make it admissible. 1 Thompson on Trials, Section 118; 70 Md., 328.
    It makes no difference that a written motion to strike the alleged bill of exceptions from the files does not appear in the record. A verbal motion was sufficient, or, in the absence of a motion, the finding of the court, althoug’h not called to-the attention of the court by motion. It will be presumed, if the record does not show to the contrary, that the parties at the trial waived the objection and the want of the motion. 39 Minn. 365, S. C. 40 N. W., 265; Wyvell v. Jones, 37 Minn. 68; S. C. 33 N. W., 43.
    The evidence upon which the court find that a bill of exceptions was not duly allowed and signed is not shown by the record, and without it, or it being made to appear that no evidence was offered, the court cannot determine that the judgment was erroneous. Miller v. Simms, 1 C. S. C. Rep., 485; Armstrong v. Clark, 17 Ohio, 495, 497; R. R. Co., v. Collet, 6 Ohio State, 182, 186; Dallas v. Ferneau, 25 Ohio State, 637.

      In the absence of a bill of exceptions containing the evidence or showing that no evidence was offered, the reviewing court will infer that the evidence was sufficient to sustain the finding.

      Mathis v. McCord, Wright, 647; Wilson v. State, 2 Ohio St., 319; Bethel v. Woodworth, 11 Ohio St., 393, 397; Bliss v. Krauss, 16 Ohio St, 60; Smyth v. Sprout, Wright’s Rep. 757; Hill v. Bassett, 27 Ohio St., 598; Lathan v. School, 25 Neb. 535.
    If any supposable evidence would sustain the finding and judgment of the court, it will be presumed such evidence was given in the absence of a bill of exceptions showing that it was not given. A revisory court never presumes that an inferior tribunal has erred. The presumption is that it has not. Until the contrary is shown by the record, the court below is presumed to have acted and decided correctly. Kitchen v. Loudenback, 48 Ohio St., 177, 190; Champlain First Nat'l Bank v. Wood, 45 Hun., 411; Christy v. Douglas, Wright’s Rep., 489; Wagers v. Dickey, 17 Ohio, 440; Taylor v. Fitch, 12 Ohio St., 169, 175; Prescott v. State, 19 Ohio St., 188; Coil v. Willis, 18 Ohio, 30, 31.
    The maxim ‘1 omnia presitmuntur rite et solemnitur esse acta donee probetur in contrariam has its full and appropriate application to the finding and judgment complained of. Broom’s Legal Maxims, 729; Ide v. Churchill, 14 Ohio St., 378.
    If the finding was correct, the judgment was correct.
   Bradbury. J.

Two questions, only, arise on the record, 1. Did the petition, as amended, state the cause of action. 2. Did the circuit court err in holding that the bill of exceptions taken in the court of common pleas by the plaintiff, “was not duly allowed and signed” * * *? The amended petition is in the following words :

The plaintiff says:

“On the 9th day of February, A. D. 1892, she was duly appointed and qualified and letters of administration on the estate of James Kernochan, deceased, were issued to her by the probate court of Crawford county, Ohio, and she is now the duly qualified and acting administratrix of said estate1. The defendant is now, and at the time hereinafter mentioned, was, a corporation, duly incorporated under the laws of the state of Ohio, and owned and operated a railroad located in and passing through thevillage of Crestline in this county from the north eastern portion of said village to the southwestern portion thereof, with the cars and locomotives thereon.

“Át the time of the commission of the grievances and wrongs hereinafter complained of, and for more than twenty years prior thereto, a large building known as the Continental hotel was used by the defendant and by the Pittsburgh, Fort Wayne and Chicago railway company as a passenger station and the same was also at the same time used for hotel purposes. During all the same time three of the tracks of defendant’s railroad have been located immediately west of said Continental hotel. A hotel known as the Gibson was, during all said time, located a few feet west of said last named tracks and west of said Continental hotel. During all. said time two of the' tracks of the Pittsburgh, Fort Wayne and Chicago railway have been located immediately south of said Gibson house and said Continental hotel. At and during all of said time immediately south of the last named tracks and east of the three tracks of defendant’s railway there was and had been located a building used by both of said companies as a telegraph office, and immediately south of the building last named two or more tracks of the Pittsburgh, Port "Wayne and Chicago railroad were located and which crossed'the three tracks of the defendant’s railroad. About four rods south of the last named crossing and east of the said three tracks of defendant’s railroad during all said time was located the freight houses of said railroad companies with other tracks of said defendant in front thereof used daily by said defendant in shifting cars from its railroad to the Pittsburgh, Port Wayne and Chicago railroad and for loading and unloading freight. At and during said time one of the principal streets of said village running with and south crossed the three tracks of the defendant’s railroad a few feet south of the crossing last above described. A considerable portion of said village of Crestline lay south of said crossings, and said street was in daily use and much traveled and frequented by the inhabitants of said village and by country people coming into and going out of said village. All of said tracks and crossings are, and always have been much used by said companies; and the employes of said companies and the public generally have been in the habit of passing over said tracks and crossings at all the points above described at all hours of the day and night with great frequency, so that the same became and on the 8th day of January, A: D. 1892, was a public highway.

“The plaintiff in further amendment of her petition says that said James Pernochan was on said Thoman street at the east line thereof when he was struck by said train and killed.

“The said James Kernochan was employed by the Pennsylvania company, lessee of the Pittsburgh, Port Wayne & Chicago Railroad, as a car inspector, and on the night of January 8th, 1892, he was engaged in the discharge of his duties as such car inspector on the tracks of said Pittsburgh, Port Wayne & Chicago railroad, west of the tracks of defendant’s railroad. Between the hours of seven and eight o’clock p. M., it became his duty as such car inspector to pass over the tracks of defendant’s railroad at a point between said telegraph office and said ’freight house.

“At about seven o’clock of said evening the local freight train of defendant was pulled into Crest-line from the North, and stopped on the west track above described in front of the Gibson House, and north of said railroad crossings. Said train was then cut and the locomotive with some of the cars attached thereto, passed over said crossings to said defendant’s freight house, and was there kept for some time loading and unloading- freight and shifting cars.

‘ ‘After doing said work, said cars pushed by a locomotive were negligently backed to couple on to the rear portion of said train left standing as aforesaid on the defendant’s track in front of the Gibson House. Said locomotive and cars so backed were by said defendant negligently put, and then were, in the hands, and under the sole control of inexperienced and unskillful servants. No light or lights were displayed at the rear end of the portion of the train being so backed, and no servant of said company was stationed on the rear car thereof to pi event danger or accidents, and neither the conductor nor the engineer of said train was upon said portion thereof so being backed, but said conductor and engineer had left said train and were out of sight and hearing of the same, and no signal of any kind was given to warn persons who might be upon or about to cross defendant’s said tracks, upon or near said crossings, that said locomotive and ears were being backed, but the same was by said defendant negligently and unlawfully omitted. While said locomotive and cars were being so unlawfully and negligently backed, the said James Kernochan was compelled as aforesaid in the discharge of his duties as aforesaid, to cross the tracks of said defendant’s railroad, at or near the south crossing above described, at which time a passenger train was being run on the east track of defendant’s 'railroad in southerly direction, immediately in front of said James Kernochan, with steam escaping and the bell of the engine being rung, so that the noise made thereby prevented said James Kernochan from hearing the locomotive, and the cars so as aforesaid, approaching from the south and so as to obscure the light from said west track, rendering the same entirely dark, so as to prevent said James Kernochan from seeing t'he rear or any other portion of the cars and locomotive so as aforesaid being backed towards the rear portion of said train so as aforesaid left standing in front of said Gibson House.

“The said James Kernochan had no knowledge or means of knowledge that said cars and locomotive were being so backed from the south, and the said train passing in front of him compelled him upon peril of his life to stop on said track for a moment, and while he so stopped, he was, without any fault or negligence on his part, and wholly by the negligence of the defendant, run over by said ears and locomotive, so as aforesaid being negligently backed, and instantly killed.

“At the time of his death said James Kernochan was twenty-three years old, was an active, strong, healthy man, temperate, of good habits, standing well with his employer, and capable of earning good wages. He left surviving him this plaintiff, as his widow, who was at the time of his death dependent upon him for support. She has been, injured by his death to the amount of ten thousand dollars.

“Wherefore plaintiff as administratrix of said estate asks judgment in the sum of ten thousand dollars. ’ ’

Plaintiff in error contends that the averments of the petition raise a presumption against the decedent of contributory negligence. We do not think this is true. The decedent was engaged in discharging the duties of his occupation, that of car inspector for the Pennsylvania Company, which company and plaintiff in error used in common the yard where the accident occurred, as the exigencies of the business of each required. Of course the deceased' assumed such risks jis grew out of the nature of his occupation, and, therefore, if his death was due to an accident that was incidental thereto, or was caused by the negligence of. another, for whose fault he is chargeable, his administratrix could have no remedy. But one who is engaged in a hazardous occupation, no more assumes the risks that may arise from the negligence of others, than does the person who engages in occupations comparatively safe. The duties of the decedent, as car inspector, mustj of necessity have been performed in the yards of these railroad companies. The cars must be inspected while standing upon some of the tracks therein, — side or main- tracks. He must pass along’ or across these tracks, or near them of necessity. It was possible that moving cars might at any time pass along them. If. they did so without any one being in fault and injured him, no recovery could be had, for this was a risk incidental to his employment.

But he was not bound to anticipate that a locomotive and ears would be placed in the hands of inexperienced or unskillful servants, and then backed through the yards without a light displayed, or a person stationed on the rear end of the moving train to give warning of its approach, especially at a moment when another train with its bell ringing and steam escaping, so as to drown the noise made by the backing train, was also passing; and these are the negligent acts that are alleged to have caused the decedent’s death. Not being bound to foresee and guard against this course of conduct on the part of the plaintiff in error and its ' servants, his failure to do so, though it may have directly contributed to his death, was not negligence and should not defeata recovery.

During the trial of the cause in the court of common pleas, after the plaintiff in that court' had closed her testimony, the railroad company moved ■the court to direct the jury to return a verdict in its favor, because the evidence introduced by her raised a presumption of contributory negligence. This motion being overruled, the plaintiff in error introduced its evidence. The trial resulted in a verdict for the plaintiff below.

The railroad company moved for new trial, assigning as reasons therefor a number of distinct grounds of error, among them, the action of the court in overruling its motion to direct a verdict, that the court erred in admitting, and also in rejecting evidence; that the court erred in the instructions it gave to the jury, and in refusing to charge as requested; that the verdict was excessive ; and that it was contrary to the weight of the evidence. This motion was overruled, and thereupon the railroad company prepared a bill of exceptions embodying all the evidence, the charge of the court and its several rulings in admitting and rejecting evidence. This was signed by the trial judge in due time and the following entry in respect thereof placed upon the journal of the court.

“This day came the defendant and filed its bill of exceptions, duly allowed, signed and sealed, and the same at its request is ordered to be made a part of the record in this case, all of which is done within the-fifty days allowed.”

The cause was taken to the circuit court on error; that court declined to consider the errors assigned in the bill of exceptions, because it found that the bill of exceptions “was not duly allowed and signed, and for that reason find no error in the record of the court below.” * * *

This action of the circuit court is assigned as error in this court.

The plaintiff in error was, of right, entitled to the judgment of the circuit-court upon the assignment of error, if such bill of exceptions, being legally perfected, was before that court.

Suggestion was made in argument that there might have been more than one bill of exceptions taken in the trial court, and that the one the circuit court declined to consider may not be the one that is disclosed in the record brought to this court. The bill of exceptions appears to have been signed by the trial judge, March 3, 1894, it was filed in the court of common pleas, as the file, mark shows, on the 5th of March, 1894, and the entry on the journals of that court of its allowance, was on March 12,1894, seven days later. This difference of dates is, of course, compatible with the suggestion that more than one bill of exceptions mighthave been taken; on the other hand, it might occur in the case of a single bill of exceptions.

An examination of the whole record does not give the slightest corroboration to the suggestion that there was more than one bill of exceptions. The journal of the circuit court, setting forth its refusal to consider the bill of exceptions, shows that its action was based upon the identical record and papers now on file in this court. That court having before it nothing except this record, necessarily acted solely thereon. That record, we have seen, affords no ground to believe that more than one bill of exceptions was ever taken in the action. It is therefore idle to suppose the action of the circuit court was influenced by that theory, and, the suggestion 'should be dismissed as totally unfounded.

In Hill v. Bassett et al. 27 Ohio St., 597, it was held that, “Before a paper purporting to be bill of exceptions can be regarded by a reviewing court, upon error, as a part of the record, it must appear from the record, outside of such paper, that a bill of exceptions was, in due time, tendered to, allowed, signed, and sealed by the court, and made part of the record; and the paper in question must be identified, with, reasonable certainty, as the bill of ex-exceptions which was thusmadepartof the record. ”

This bill of exceptions was identified with reasonable certainty; it was signed by the trial judge and bears the file marks of the trial court.

The journal of the court of common pleas made in the case, recites that the “defendant came and filed its bill of exceptions, duly allowed, signed, and sealed, and the same at its request was ordered to be made a part of the record in this case. ” * * * No ambiguity arises out of this language, it necessarily implies that the bill of exceptions had been presented to, allowed, signed and sealed by the trial ]udge or some judge authorized to act in his stead. It could not have been signed by such judge unless presented to him, and it could not have been ‘ ‘duly allowed, signed and sealed” by any other than a judge having authority to do so. We think the journal entry shows that every act required by the statute to give validity to. the bill of exceptions was performed. The bill of exceptions, having been duly allowed, was before the circuit court, and the plaintiff in error was, of right, entitled to the judgment of the circuit courts upon the questions it presented. The declination of that court to consider them violated this right, and was for that reason prejudicial to the plaintiff in error. It is no answer to this view of the case to say that the circuit court might, or even should, have affirmed^ the judgment below, because the rulings of the trial court, as disclosed in the bill of exceptions were correct. Whether this court should reverse a judgment of the circuit court for striking a bill of exceptions from its files, or for refusing to consider it, where it was made to appear that the questions it presented were frivolous, need not now be considered. No claim is made that the questions arising on the bill of exceptions under consideration are of this character.

Judgment reversed and remanded to the circuit court for further proceedings.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The Village of Bellefontaine v. Vassaux.

      Sale of Personal Property — Consignment of goods to purchaser— Delivery to common carrier is not delivery to pier chaser, when —Conditions necessary to complete sale of personal property.

    1. The general rule is that title to goods intended to be transported passes from the vendor to the purchaser upon delivery by the former to a common carrier consigned to the purchaser, whether paid for or not. But if the vendor consigns the goods nominally to the purchaser, but actually in care of his own storekeeper, who is to retain them in control and give possession to the purchaser only on payment of the purchase price, then the delivery to the common carrier is not, in law, delivery to the purchaser.
    2. Under such circumstances, the shipment being in effect to . the vendor himself,' the delivery, when it occurs, would be at the storehouse of the vendor; and the transaction would not be a completed sale at the point of shipment.
    3. As a general rule, a sale of personal property is not completed when anything remains to be done to identify the thing sold, or discriminate it from other like things.
    (Decided December 1, 1896.)
    Error to the Circuit Court of Logan county.
    Upon a complaint before the mayor of Bellefontaine, the defendant was convicted of keeping a room at that place where intoxicating liquors were sold in violation of an ordinance of the village, and sentenced to fine and costs. Error was prosecuted to the common pleas where the judgment of the mayor was affirmed. On error the circuit court reversed both judgments. The village brings the ease here to obtain a reversal of the latter judgment. Facts are stated in the opinion.

      S. H. West, solicitor, and TFes i c& West, for plaintiff in error

      James Kernan and John B. Oassiday, for defendant in error.
   Spear, J.

The ground'for reversal by the circuit court, as stated in the record, is that “The complaint in the proceedings before the mayor is not supported by evidence.”

Considerable space is taken in the brief for plaintiff in error with an argument in support of the proposition that the courts below were without power to review the judgment of the mayor upon the weight of the evidence. But opposing counsel in their brief respond that they do not care to discuss that question, for neither of the courts con. sidered the weight of the evidence, as no case was presented which called on them to do so. In this situation it appears unnecessary to enter upon the inquiry as to the power alluded to, and as its determination is not necessary to a decision of this case, a consideration of it may properly be left until a ease arises in which it is necessary.

We therefore look to the record to see if there is any evidence tending to support each material element of the complaint. Those are: That the defendant, between July 20, 1894, and August 23, 1894, at the village of Bellefontaine, kept a place where intoxicating liquors were sold at retail, other than at the manufactory, and otherwise than on prescription, or for exclusively known mechanical, pharmaceutical or sacramental purposes.

The evidence shows that a refrigerating beer house owned by John "Wagner & Sons, of Sidney, Ohio, and of which defendant had charge, was maintained within the village at the time stated, in which a large number of kegs of beer, each containing four gallons, was kept. Two witnesses were called to testify to alleged sales. One, Harry Roof, testified, among other things, that he had not ordered any beer of Vassaux; that it was a question with him whether he purchased' from the defendant or from Wagner Bros., but that, between the dates named, he received of defendant, at the beer house, ten kegs of beer known as “pony” kegs, one at a time, and paid defendant for each keg as received at the beer house; that he paid ten times, one dollar each time; that this was in the village of Belief ontaine; that he bought the beer to drink; that he did not hold any prescription from any physician for beer; that each keg was marked with the letter “R,” and that the beer was an intoxicating liquor. The beer was hauled either by defendant or by Henry Vassaux, or one Hitqhins, wherever witness directed. From orders he had received witness would judge that Ed. Wagner ran the beer house; that he had seen him there, although he was not always there when witness got beer, nor did he pay Wagner for any of the beer. He ordered beer from Mr. Wagner, i. e., he would write to Mr. Wagner at Sidney, and then “I would receive an order from him for five kegs and showed it to Louis Vassaux at the beer house, and when I wished my beer would say to him I had received an order from Wagner Bros. Then after that I could order beer to the amount of five kegs. I would tell Mr. Vassuax ‘I want a keg of beer on my order.’ ”

Another testified that he had not purchased any beer of Vassaux; that during the time named he received three four-gallon or “pony” kegs of beer of Vassaux,which were delivered at his house, one keg at a time, for which he paid the driver— Hitchins — on delivery one dollar each. Witness testified otherwise generally as the former witness, except that two kegs ordered by him had not been paid for or delivered to him. ‘The}'- will be paid for,” said the witness “when I receive them.”

The orders described by Roof were addressed to JohnWagner’s Sons, Sidney Ohio, and requested them to sell the writer five kegs beer at usual wholesale prices, and “ship same to me, care of your storekeeper, to be stored bjr you in your warehouse here subject to my order.” The response would be in substance a bill for the beer and the advice underneath: “We have shipped the above beer at Sidney to you at Bellefontaine, marked “R,”, care of our storekeeper, to be stored by us for you in our storehouse in Bellefontaine subject to your order.” (Signed) “John Wagner’s Sons.”

The order from the other witness, and response, were of similar form and substance.

All beer so ordered was shipped on a way-bill giving the names of those who had ordered, the number of packages requested, the initial mark on each keg, “with entire lot care of Louis Vassaux.”

The witness Hitchins testified that he was in the employ of the Wagners to drive the wagon and deliver the beer at Bellefontaine They paid him by the month. Vassaux was in charge of the beer house; was the storekeeper. Witness, and Vassaux unloaded the beer at the depot and stored it at the beer house. The kegs were stored in racks, and over each an initial, being a rack for each letter of the alphabet. So that when Roof called and showed his order and asked for a keg of beer, it would be taken from the rack which had the initial of his surname over it, “R. ” Each keg had the initial of the consumer on it, but there would be no means of distinguishing Roof’s keg from any other that had “R” on it. Witness did not collect any money for any beer delivered; but the consumers sometimes deposited with him and he “put it up for Mr. Wagner.” He did not give the money to Vassaux, but put it in his trunk until Wagner came and then gave it to him; and Vassaux put what he received “in the same box.” In the opinion of witness he “simply received that money on deposit for the customers to pay it for them to Wagners’;” but should such money be lost he would be responsible to Wagner; he could, not hold the man from whom he got it. Vassaux had no authority over the beer other than to store and deliver it on the order of the purchaser. But if Mr. Roof or other customer, had appeared at the storehouse having an order, and demanded that beer in his name should be delivered without pay, it would not have been done. If, under like circumstances, the customer had presented the price, the beer would have been delivered at the place desig’nated. Just so much would have been delivered as was paid for.

Edw;ard Wagner, among other things, testified that the business of John Wagner’s Sons was brewing beer, ale and malt, and selling the same; that the place of business was at Sidney, but they owned the storehouse in Bellefontaine which had been described by other witnesses, of which Louis Vassaux was the keeper. Witness had the exclusive control of it. John Wagner’s Sons had a government license to sell beer at retail in Bellefontaine. The method of making the sales and shipments was described, and he added: “We retain no control as .vendors over the beer thus sold and shipped after delivery to the railway station only to secure the money of Mr. Roof and to store it for him according to contract. When I delivered it, it was his beer, and I stored it in Bellefontaine for him as his property according to contract.” As to the authority of Vassaux to collect, he testifies: “Well, we told the customers they could deposit the money with Mr. Vassaux and he could keep the money for me till I came up here. Some of the collecting I did myself.”'

The foregoing embraces the salient points made by the testimony. What does it tend to prove?

It is' contended in support of the judgment of reversal that the evidence conclusively establishes that the propositions to buy were made at Sidney, accepted at Sidney, credit given at Sidney, beer delivered to the carrier at request of purchaser, at Sidney, the beer having been previously set apart and designated by the initial letter of each purchaser’s name; thus the possession, right of possession, control and title passed to the purchasers at Sidney, and hence conclusively, as matter of law, the sales were made at Sidney, and so could not be held to have been made at Bellefontaine; the relations of Wagner’s Sons to the property when at Bellefontaine being only that of bailees, storing it for the purchasers.

The ordinary rule is that title passes where the specific goods are, at the request of the purchaser, delivered to the common carrier, consigned to the purchaser whether the price has been paid or not. So that, the mere fact that the goods were to be subsequently paid for would not of itself prevent the transaction being a completed sale. But it is also true that if the vendor ships the goods to the keeper of his own storehouse, and retains, whether as owner of a storehouse or otherwise, contr.ol of the goods at the terminus for the purpose of exacting pay before actual possession by ■ithe purchaser is permitted, then the fact of delivery to the carrier is not, of itself, delivery to the purchaser. And under such circumstances, the delivery, when it occurred, would be at the terminus, and not at the point of shipment. It is observed by Mr. Benjamin, in his work on Sales, section 399 : ‘ ‘The fact of making the bill of lading deliverable to the order of the vendor, is, when not rebutted by evidence to the contrary, almost decisive to show his intention to reserve the jms cMsppnencti, and to prevent the property from passing to the vendee. The prima facie conclusion that the vendor reserves the yws disppnendi, when the bill of lading is to his order, may be rebutted by proof that in so doing he acted as agent for the vendee, and did not intend to retain control of the property; and it is for the jury to determine as a question of fact what the real intention was.” So, if the trial court believed the witnesses who testified as to the method of shipment, the form of the way-bill, and the method of storing and conditions of delivery of the beer, and the collection of the purchase price, there was evidence of circumstances, however contradictory, tending to show that the vendors did not intend to part with possession and control of the beer absolutely, but intended to retain control through their agent, Yassaux, until the price should be paid.

Again, the general imle is that, in order to pass title the particular property must be designated. As expressed in Woods v. MGee, 7 Ohio, 467: ‘‘Where a part of an undivided lot of p ropertyis sold, and an order given for its delivery, there must be some act of selection under the order before the right of property is changed.” This case was distinguished in Newhall v. Langdon, 39 Ohio St., 87, but the facts of that case are peculiar and the decision does not bear upon the case at bar. It ip held in McClung v. Kelley, 21 Iowa, 508: “A sale is not completed so long as anything remains to be done to the thing sold to put it in condition for sale, or to identify it, or discriminate it from other things, or to determine its quantity if the price depends on this, unless this is to be done by the purchaser.”

So, also, if the trial court believed the testimony of the witness Hitchins with respect to the way the beer ‘was kept in the storehouse (and on this he was uncontradieted) there was evidence tending to show that there had been no special designation of Roof’s beer, for while the letter “R” was on each keg delivered to him, that letter was equally on all kegs intended for other purchasers whose names began with “R,” and, as stated by the witness, they could not distinguish Roof’s beer from any other that might be on the “R” rack.

The evidence was confusing and more or less conflicting. We think, however, there was evidence tending to prove each element of the accusation, and, upon the trial court devolved the duty of getting at the real transaction, the real intent of the parties, for it was this intent which should govern. Whether that was that the owners should part with their property, and the purchaser become the immediate owner on delivery at the railroad station at Sidney, or, on the other hand that control was to remain in the vendors and title pass to the purchaser only after performance of certain conditions at Bellefontaine— which was the controlling question in the case— was to be determined by weighing the evidence. This duty was within the province of the mayor. In performing it he was required to consider, not the orders, responses and bills and declarations of the vendors alone, but all the evidence, and weigh it all in the light -of surrounding circumstances. If, upon the whole case he was of opinion that the sales were in fact completed at Sidney, acquittal would of necessity follow; but, if 'on the other hand, he was of opinion that under the evidence the sales were proven to have been made, at the beer house in Bellefontaine, it was within his province and jurisdiction to so find and declare. If he so found, the fact that Vassaux was an agent would not shield him. Our criminal law does not recognize agencies. The sales, if made at Bellefontaine, were made by the four-gallon keg,and were at retail, as held in Kauffman v. Hillsboro, 45 Ohio St., 700; they were not made, at the manufactory, nor upon any prescription, nor for mechanical or pharmacuetical purposes, but for personal consumption.

With the correctness of the mayor’s finding on the preponderance of the evidence we are not concerned. It is. enough that there was evidence tending to sustain each element of the complaint, and that the mayor had jurisdiction to weigh the evidence, and find as his judgment should dictate.

Judgment of the circuit court reversed and that of the common pleas and mayor affirmed.


author: Burket, J.

text:
    The Standard Oil Company v. Sowden, Assignee, et al.

      Mechanic's lien — Notes to contractors for balance — Notes sold to indorsee— While indorsee holds notes lien taken by \contractors on structure — Lien valid.

    Upon completion oí a structure, three notes were taken by the contractors from the owner for the balance due, which notes were indorsed and sold to a bank, and within four months after the completion of the structure, and while the bank was the owner and holder of the notes, the contractors made and filed with the county recorder an affidavit in due form for perfecting a mechanic’s liento secure the indebtedness for erecting the structure. Held, that such lien is valid.
    (Decided December 1, 1896.)
    Error to the Circuit Court of Cuyahoga county.
    The Merchant’s Oil Company, a corporation, in the year 1891, employed Kennedy, DePorrest, Parsons & Company, a copartnership, to construct certain tanks in the refinery of the Oil company, and upon completion of the tanks, not having ready cash to. make payment, gave its three promissory notes for the amount due, at sixty, seventy-five and ninety days, which notes were accepted by the partnership, not as payment of the debt, but to give further time to the Oil company, and to enable the partnership to raise money by discounting the notes. The notes were at once indorsed by the partnership and sold to a bank, and while the bank was the owner -and holder of the notes, and within four months after the completion of the tank, the partnership filed with the recorder of the county an affidavit containing an itemized statement of the amount and value of erecting the tanks, with a description of the promissory notes, in all respects as required by section 3185, Revised Statutes.
    When the notes became due the Oil company failed to pay them, and the partnership took them up, and thereafter continued to be the owner and holder thereof, but no affidavit for the purpose of perfecting a mechanic’s lien was filed after it took up the notes, nor before it discounted them to the bank. -
    In the month of January, 1892, after said tanks had been completed, and before said notes had been made, and before any attempt had been made to perfect a mechanic’s lien, the Oil company executed and delivered a real estate mortgage to the Standard Oil company upon the premises upon which the tanks had been erected, and the Merchant’s Oil company having made an assignment to Mr. Sowden, defendant in error, who sold the premises under orders' from the probate court, a contest arose as to the distribution of the proceeds of sale.
    The probate court held the mechanic’s lien taken by the partnership valid, and superior to the lien of the mortgage of the plaintiff in error, and the partnership having produced the notes in the probate court, and offered to .surrender them, that court ordered its lien to be first paid out of the proceeds of the sale.
    Upon appeal to the court of common pleas, the case was submitted upon an agreed statement of facts, and the court held the mechanic’s lien invalid, and awarded the money to the Standard Oil company, ffpon its mortgage.
    The circuit court, on error held the mechanic’s lien valid, and awarded the money to the partnership. Thereupon the Standard Oil company filed its petition in error in this court, seeking to have the judgment of the circuit court reversed, and that of the common pleas affirmed.
    Henderson, KUne & Tolies, for plaintiff in error.
    The sole question presented for determination here is, could Kennedy, DeForest, Parsons & Co.obtain a lien at a time when they were not the owners of these notes and it was not even certain that they would ever be liable thereon ? Or was it necessary for them, in order to obtain the protection of the mechanic’s lien law, to be the owners of the notes given for the work done by them . at the time of filing the affidavit required by the statute?
    We concede that the mere acceptance of a note for work done ’ or material furnished by a con-: tractor to the owner is not in this state a waiver of his right to obtain a mechanic’s lien. We believe this was so even before the amendment of the statute, but under section 3185, as it. now stands, which expressly provides for setting out a description of any promissory note given for such labor or material, of course the right to take the note without, waiving the right to the lien cannot be questioned.
    We may concede also, for the purpose of this case, for that question is not here, that the mere negotiation of a note so taken is not a waiver of the right to a lien, but that if a note having been so taken and negotiated is afterward reacquired by the contractor within the statutory period of four months from the time of performing his labor or furnishing his material, he may yet, under the statute, file his affidavit and obtain his lien.

      It is true that in this state a note given for an indebtedness is not a payment of that indebtedness, unless there is an express agreement to the effect that the note is to be received in payment. There was no such agreement in this case. A note so given, however, is a conditional payment of the indebtedness for which it is given. By the giving and acceptance of the note the debt is can-celled conditionally and has no existence or vitality until the -dishonor of the note giveu for it. No action can be maintained upon it until the note is matured, nor afterwards, unless the note having been dishonored, is surrendered for cancellation or in' some other way accounted for. 2 Daniel on Negotiable Instruments, 272, section 1272. • ■
    This, it seems to us, as above urged, to be the true theory of the effect of taking a promissory note for another indebtedness, viz.: that it is a conditional payment, cancelling the other indebtedness during the currency of the note, v hich indebtedness may, however, revive upon its dishonor. It seems to us, therefore, clear that when the payee transfers his note during its currency, he has no claim left in his hands, nor is he a creditor, nor can he become one until he again becomes the owner of the note. It may happen that the endorsee of the note will fail by proper demand and notice to fix his liability as endorser thereon, and in such case it is clear that the original debt never revives, but remains merged in the note. In such a ease the ruling of the court below would permit one who was not a creditor of the owner of property, and who never thereafter became a creditor, to place upon the records a lien against his property. This certainly was not contemplated by the act. Palmer v. Uncas Mining Co., 70 California, 614.
    The court seems to treat the reacquirement by the miner of the order before the expiration of his time for filing his claim of lien as essential to the right to file süch claim, and in that particular holds what we here contend for, that the ownership bjr the material man of 'the claim or debt against the land owner is essential to his perfecting his lien.
    Although it is everywhere held that the mere right to perfect a lien is not assignable, of course there is no reason why a perfected lien is not as transferable as any other security and should follow the note evidencing the indebtedness secured by it into whatever hands it may come. Morton, Assignee, v. Austin, 12 Cushing, 389.
    We believe the reason this question has not reached courts of last resort is, that wherever it is disclosed to counsel engaged in the preparation of a mechanic’s lien that notes have been taken and have been sold, the safe course for the material man is to repossess himself of the notes in order to perfect his lien, and that this has been the constant practice, so that this question has not presented itself.

      Burke <& Ingersoll, for defendants in error.
    It is contended by the attorneys for the Standard Oil Co., that inasmuch as Kennedy, DeForest, Parsons & Co., on February 3d, 1892, took the notes in question covering the entire amount of their claim and endorsed the same to the bank on that date, they therefore parted with all claim which they had against the Merchant’s Oil Co., and had nothing due then on which they could base a claim, on the 12th day of March, 1892, the notes then being in the hands of the bank, they were wanting entirely for a base on which to rest their claim filed in the recorder’s office. Upon the first point we claim:
    It certainly was not within the meaning of the statute above cited, section 3185, that the receiving of the notes . by the mechanic who claimed his lien should deprive him of right to perfect his lien.
    (a) The language of that statute is as follows: Besides other 'things contained, or to be contained in an itemized statement of account which is to be sworn to and filed with the recorder, it is said, “And a description of any promissory note or notes given for such labor or material or any part thereof.” It seems to us nonsense to contend that the law should require a statement of such notes in every sworn account for a lien, and yet mean to deprive of the right to a lien if notes had been taken.
    The only effect of taking such promissory note was not to discharge the original account, not to merge the original account in a note in absence of an agreement that the note should be taken as a payment, but merely to furnish evidence of the agreed amount of the account, and to furnish it in such shape that the mechanic would be able to obtain money upon this evidence of account when he was asked to accommodate the owner of the premises and the maker of a note, giving bim further time.
    (b) We contend in behalf of Kennedy, DeForest, Parsons & Co. that the doctrine is clearlv established in Ohio, that the taking of a note given by a debtor to his creditor covering the amount of an account due from him to his creditor when it remains unpaid at maturity, does not operate as payment of the original account, unless at the time the note was given there was a distinct, expressed agreement, that it should be accepted by the fereditor in payment of the account. Merrick v. Boury & Sons, 4 Ohio St., 60; Leach v. Church, Admr, 15 Ohio St., 172.
    (c) We contend that with this fact admitting that there was no agreement to receive the notes in question in payment of the account for labor and materials which had been furnished by Kennedy, DePorest, Parsons, & Co., when the notes were so taken and held by them, such notes were merely evidence of the indebtedness, that the account to which the lien was attached by virtue of the statute, was an individual chose in action itself, and continued such during the time the notes existed, and when the notes remained unpaid and were taken up by the indorsers, Kennedy, DeForest, Parsons & Co., the right to sue upon the original account still remained with them and was all the while remaining with them, except that it was suspended during the time said notes were in force prior to their maturity and dishonor, and therefore, their right on the 12th day of March, 1892, to take out a lien, was in no sense discharged or waived, but they had that right at that time. Bank v. Schlott, 59 Iowa, 316; Miller v. Moore, 1 E. D. Smith, (N. Y.), 739; Blake v. Pitcher & Wilson, 46 Md., 453; Morrison v. Laura, 40 Mo., 260; Edwards v. Derrickson, 28 N. J. L., 39; L. B. & Co. v. Jones, 79 Ala., 156.
    These are the principal cases, which, after considerable investigation, we have found to sustain the contention upon our part, and we submit that they certainly are within the philosophy and reason of this rule which was designed for the protection of mechanics ; and if the same be interpreted, as wé claim, it seems to us that it secures only what equitably belongs to the mechanic; and certainly it is not in the mouth of the debtor, or anyone who stands in his shoes, as a subsequent mortgagee, to now come in and expect to deprive us of our right as lien holders, because we saw fit, when the debt was due, to accommodate the debtor to take his notes, rather than urge and insist upon his payment in money, when it was due. Van Stone v. Manf ’g. Co., 142 U. S., 128.
   Burket, J.

It is urged by plaintiff in error that the mechanic’s lien is void, for the reason that the affidavit upon which it is based, was filed while the bank was the holder and owner of the notes, and while the' partnership was not the creditor of the owner of the premises and while the owner owed the money to the bank, and not to the partnership. It was strongly urged in oral argument that the partnership could not truthfully say under oath while the notes were outstanding, that any amount was due or payable to it for building the tanks.

' In Brooks v. Finney, 39 Ohio St., 57, where promissory notes had been taken in payment, of the amount due, it was held that no mechanic’s lien could thereafter be taken for such amount. Shortly thereafter the general assembly amended section 3185 so as to authorize the taking of such liens, in cases where promissory notes had been given for the amount due.

The general assembly has shown a, purpose-to go as far as it can, within the limits of the constitution, to protect mechanics, laborers and furnishers of materials in the collection of the amounts due them, and the statutes are so worded as to sweep away all technicalities in the remedy. Section 3185 provides that the mechanic, laborer or furnisher shall file “an affidavit containing an itemized statement of the amount and value of such labor, machinery or material * * * with all credits and off-sets thereon, a copy of the contract, if it is in writing, a statement of the amount and times of payment to be made thereunder, and a description of the premises, ’ ’ etc. Having made and filed such affidavit with the county recorder and caused it to be recorded, 'the-same shall “operate as a lien from the date of the first item,” etc.

It will be noticed that this statute requires no statement of the amount due or owing to the mechanic, laborer or furnisher, nor does it require a statement as to who owns the promissory notes. The lien is taken to secure the indebtedness, and the indebtedness, whether in the form of account or. note, will remain secured by the lien until payment, and when payment shall be made, the lien must be released, and upon refusal the same may be compelled by action. In the taking of the lien, it makes no difference who holds or owns the notes. When the owner of the property comes to make payment, he may be put to some little inconvenience in ascertaining the parties entitled to receive the same, and in obtaining a valid release of the lien, but such inconvenience is only an incident of the transaction, like garnishee process, and does not affect the property rights of the owner of the structure, and only diverts the money owing by him from one person to another. A like inconvenience arises when a note secured by mortgage is transferred without assigning the mortgage. In such, case payment must be made to the holder, while the release of the mortgage must be obtained from the mortgagee.

The mechanic’s lien law has been amended from time to time, and each amendment evinces a purpose on the part of the general assembly to more effectually secure the mechanics, laborers and furnishers of materials, in the collection of the moneys earned by them. The object of the statute is to tie up the money owed by the owner of the structure, and make it a security for the indebtedness to, the mechanics, laborers and furnishers, and those holding under them, their, rights to the fund to be determined by the ordinary rules of law and equity; but the owner of the structure, and other lien-holders, cannot take advantage of the manner in which the indebtedness is held by others, to defeat the lien. If notes are accepted as payment, such payment as effectively discharges the indebt- • edness as a payment in ’cash, but as long as the indebtedness for erecting the structure exists unpaid, it may be secured by the taking out of a mechanic’s lien.

As the notes in question were not accepted as payment, it follows that, the partnership had the right to perfect its mechanic’s lien for the security of the. indebtedness, while the notes were owned and held by the bank, and the lien having been taken in time, and being in due form, should be upheld.

It follows that the circuit court did not err in awarding the money to the partnership. This conclusion is reached by a construction of our statute, but the following cases from other states also throw some light upon the subject.

Palmer v. Uncas Mining Co., 70 Cal., 614; Bank v. Schloth, 59 Iowa, 316; Graham & Co. v. Holt, 4 B. Monroe, 61; Edwards v. Derrickson, 28 N. J. L., 39; Sweet v. James, 2 Rhode Island, 270; Steamboat Charlotte v. Hammond, 9 Mo., 59; Scott v. Ward, 4 (Greene’s) Iowa, 112; Hawley v. Warde, 4 (Greene’s) Iowa, 36, and Phillips on Mechanic’s Liens, section 278.

To the same effect is Building Association v. Kelsey, 11 Weekly Law Bulletin, 38.

Judgment Affirmed. ■


author: Williams, C. J.

text:
    Pennsylvania Railroad Company v. Snyder.

      Railway corporation liability — Requirement as to condition of property — Transfer of defective cars over connecting lines — Personal injury — Care required of employe — Contributory negligence.

    1 Where companies controlling connecting lines of railway, transport over their respective lines loaded freight ears of the other, under a traffic arrangement by which they share the earnings, and one company delivers to the other to be transported over its line a car that is so defective in its equipments as to be dangerous to handle, which should have been inspected and repaired before being so delivered, and in consequence of such defective condition of the caiman employe ■of the latter company receives an injury while handling it in the course of his employment, the negligence of the former ■company in delivering the car for transportation without proper inspection and repair is the proximate cause of the injury, although the employer company should also have made an inspection of the car when it was received, and was negligent in that duty; the negligence of the latter company, while contributing to produce the injury, is not an independent cause breaking the causal connection between the injury and original negligence of the company furnishing the car for transportation; and either company, or both, may be held responsible at the election of the party injured.

      2. The company delivering the car to the other company, should anticipate that employes of the latter would go upon and handle the car and thereby be exposed to the danger of receiving injury, as a natural and probable consequence of its defective condition, and owes such employes the duty of using reasonable care to discover and remove its dangerous defects before it is so delivered. The services of such employes being necessary to accomplish the transportation intended, the delivery of the car for that purpose amounts to an invitation to them to go upon and handle the car in the course of their employment, and an assurance that they could safely do so.
    3. When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; nor can it be said that, as matter of law, he is guilty of contributory negligence because he fails to make the most judicious choice between hazards ' presented, or .would have escaped iujury if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury.
    [Decided December 1, 1896.]
    Error to the Circuit Court of Lucas county.
    The original action was brought by the defendant in error, Jesse Snyder, against the Pennsylvania Railroad Company, plaintiff in error, and the Lake Shore & Miehigan'Southern Railway Company, in the court of common pleas of Lucas county.
    The petition is as follows ;
    “The said plaintiff complains of the defendant the Pennsylvania Railroad Company, and says that it is a railroad corporation organized under the laws of the state of Pennsylvania, doing business and having a managing agent in the county of Lucas. That it owns and operates a line of freight cars known as the ‘Empire .Line,’ and said cars are known as Empire cars. That said defendant at the time hereinafter named, was accustomed to run its said cars over the various lines of railroad of said Lucas county, among other roads being that of the defendant the Lake Shore & Michigan Southern Railway Company, for the purpose of transporting freight. That it is the duty of the said Pennsylvania Railroad Company to keep all such ears they may have occasion to run over said lines of railroad in ordinary condition and repair, so that the switchmen, brakemen and other persons employed on and about said cars can perform their duties with reasonable safety to their lives and limbs.
    “Plaintiff further says that the defendant, the Lake Shore & Michigan Southern Railway Company is a railroad corporation organized under the laws of the state of Ohio, owning and operating a line of railroad extending from the city of Toledo, Ohio, through said county of Lucas, and to the city of Detroit, Michigan. That it is the duty of the Lake Shore & Michigan Southern Railway Company to have all the freight cars, with the ladders and appliances upon the same, in such repair and condition as to render it reasonably safe for the switchmen and brakemen employed in and about its freight trains, to perform their duties upon the same. On and for a long time previous to the 17th day of November, 1893, this plaintiff was engaged by the said Lake Shore & Michigan Southern Railway Company as a switchman in the yards of the. said company at a place known as Air Line Junction at the city of Toledo, in the said Lucas county, Ohio. That in said yards the defendant has a great number of tracks, where it is accustomed to make up its trains and switch ears back and forth.
    “That said Empire cars are what is known as box cars, and each of the same is furnished at the end thereof with a ladder, for the purpose of allowing the switchmen, brakemen and others who may have occasion to climb upon said cars, the means of doing so. That said Pennsylvania Railroad Company was accustomed, prior to said time,in the construction of said cars, to place upon said cars what is known as a ‘handhold’, the same being a round piece of iron which is' attached to the top of the ears, near the end thereof, and directly above and over the upper round of said ladder, to which said switchmen, brakemen and other persons who may have to climb to the top of said cars on said ladder, were accustomed to grab to assist them in climbing to the top of said cars. That on or about the 17th day of November, 1893, the said defendant the Pennsylvania Railroad Company, carelessly, wrongfully and negligently caused to be delivered, for the purpose of being transported to the city of Detroit, or some other point unknown to plaintiff, to the said defendant, the Lake Shore & Michigan Southern Railway Company, one of its said Empire line box cars, the number and description of which are to plaintiff unknown. That said car was defective, dangerous and unfit for service in this: that the ladder upon one end of said ear was loose and insecure, so that a person who might attempt to mount the same would be liable to be thrown from the same and receive great injury. Said car was also defective in that said defendant had - permitted the handhold with which said car was originally supplied, immediately above said ladder and upon the top of said ear, to become displaced and carried away, and that said ear at said time was not furnished with a handhold, as it should have been, so that a person mounting said ladder and reaching to the top of the same, would be without means by which he could reach the top of said car. All of the foregoing was well known, or by the use of reasonable care might have been known to each of the said defendants, and was unknown to this plaintiff, and that he had no means of knowing the same.
    “Plaintiff further says that the said defendant the Lake Shore & Michigan Southern Railway Company, on the said 17th day of November, 1893, wrongfully, carelessly and negligently caused the said car to be run into its said yard, and be coupled with other cars and be placed in a train which was standing upon track No. 8 in said yard, in order to be pun to the said city of Detroit. That at or about the hour of 11:30 o’clock in the night time of said day, this plaintiff was engaged as a switchman for the said defendant the Lake Shore & Michigan Southern Railway Company, under the direction and control of George Pierce, the conductor who had in charge the management of the same freight train, employed by the said defendant the Lake Shore & Michigan Southern Railway Company. That said conductor directed the engineer upon the engine, to attach the engine to said train, and draw the cars down to the southeasterly end of the said track, so that the same could be transferred on what is known as the ‘cross-over track,’ to the main line of defendant’s said road, running to said city of Detroit. That the said conductor directed this plaintiff, and it was his duty to climb upon the said Empire car, the same being the last car of said train, and when said train had passed a switch leading to said cross-over track, to'signal the'engineer in said engine to stop said train. In compliance with said order and in pursuance of his duty as switchman, this plaintiff attempted to climb up the ladder on the end of said Empire car, and when near the top of said car, reached for the handhold which should have been upon the top thereof; but by reason of the said defective condition of said ladder, and of the absence of the handhold, the plaintiff was unable to reach the top of the said car, and the train being in motion, he was unable to retain his position upon said ladder, and was violently thrown from the same upon the rail of the track over which the car was passing. His right leg struck across one of the rails of said track, and was crushed, mangled and broken between the ankle and knee. His right ankle was also severely sprained and bruised, all of which has caused permanent injury to the plaintiff.
    “That the plaintiff was confined to ms bed for the period of four weeks after said accident, when it became necessary to, and the physicians of the defendant, the Lake Shore & Michigan Southern Railway Company, did perform a difficult and painful operation upon the said leg, by wiring the hones of the same which had been broken, together, so that the same might knit and heal. Plaintiff was confined to his bed for a period of six weeks after said operation; and has since said time been wholly unable to perform any labor, and has been crippled for life.
    “Plaintiff says he suffered the said injuries entirely by reason of the negligence of the said defendants, in having in use in the said railroad yard, the said car in such a defective condition, and that said injuries were received by him wholly without fault on his part, and while he was in the faithful performance of his duty, and solely by the negligence and carelessness of the said defendants.”
    And the plaintiff prays judgment for a specified sum, his damages so sustained.
    The Pennsylvania Company filed the following answer:
    “1st. The said defendant ■ Pennsylvania Railroad Company, for its answer to the plaintiff’s petition, says, it admits that it is a ra'ilroad corporation organized under the laws- of the state of Pennsylvania; that it owns and operates aline of-freight cars known as the Empire line; that said ears are run over the various lines of railroad, and among others that of the said defendant, the Lake Shore & Michigan Southern Railway Company, for the purpose of transporting freight; that said defendant, the Lake Shore & Michigan Southern Railway Company is a railroad corporation organized under the laws of the state of Ohio, owning and operating a line of railroad through Lucas county; that said plaintiff, on and prior to the 17th day of t November, 1893, was employed by the said defendant, the Lake Shore & Michigan Southern Railway Company, as a switchman, in the yards of said company at Toledo, Ohio; that said Lake Shore & Michigan Southern Railway Company has a great number of tracks at Air Line Junction, where it is accustomed to make up trains; that said Empire cars are what is known as box cars.
    “This answering defendant denies each and every allegation contained in the plaintiff’s petition, and not herein expressly admitted.

      “2nd. This answering defendant further says, that said Empire line car referred to in the plaintiff’s petition, was, on the 16th day of November, 1893, delivered by the Pennsylvania Railroad Company to the Lake Shore & Michigan Southern Railway Company at Erie, Pennsylvania, for the purpose of being used by the latter company in the transportation of ■ merchandise, which the said Lake Shore & Michigan Southern Raiiway Company might desire' to carry therein; that in consideration of the aforesaid use of said car by the said Lake Shore Company, it agreed to pay this answering defendant mileage therefor, the amount depending upon the distance which the said car might be transported by the said Lake Shore Company, in the operation of its business; that before said ear was delivered to the said Lake Shore Company at Erie, Pennsylvania, as aforesaid, the same was inspected by the latter company, and found to be in good, serviceable condition; that so far as this answering defendant knew, or might have known, by the exercise of reasonable care, the said car was in good, condition on the day aforesaid, when the same was delivered to the Lake Shore Company at Erie; that thereafter, and up to and including the 17th day of November, 1893, this answering defendant had no control or management whatever over the han,dling or transportation of said car; that the same was noton said 17th day of November, 1893, in the service of this answering defendant, but was used by the Lake Shore & Michigan Southern Railway Company, and under its sole control and management.
    “This answering defendant further says, that said car, when originally built was constructed after the most approved methods of building cars at that time, and that continuously from the time of its construction until the date of its delivery to the said Lake Shore Company, as aforesaid, this answering defendant caused the said car to be repaired when necessary, and to be kept in good, serviceable condition for railroad purposes.
    “Wherefore this answering defendant prays that as to it, said petition may be dismissed. ”
    The allegations of new matter in the answer were controverted by reply.
    The action as against the Lake Shore Company was dismissed by the plaintiff, and thereafter the cause proceeded to trial upon the issues joined between him and the Pennsylvania Company. The trial resulted in a verdict and judgment for the plaintiff; which judgment was affirmed by the circuit court; and error is prosecuted here to obtain the reversal of both judgments.
    A further statement of the facts pertinent to the questions involved, will be found in the opinion.
    E W. Tolerton, for plaintiff in error.
    1. We claim that the Lake Shore & Michigan Southern Railway Co. is solely liable to Snyder for his injuries. Baltimore & Potomac Railway Co. v. Mackey, 157 U. S., 72.
    It would be most unreasonable and cruel to declare that while a faithful workman may obtain compensation from a company for defective arrangements of its own cars, it would be without redress against the same • company if the damaged car that occasioned the injury happened to belong to another company. In Gottlieb v. The N. Y., L. E. & W. Ry Co., 100 N. Y., 462; Goodrich v.
      N.Y. C. & H. R. Ry Co., 116 N. Y., 398; Gutridge v. Missouri Pacific Ry. Co., 7 S. W. R., 476.
    2. We claim further that the Pennsylvania Railroad Co. is not liable to Snyder, an employe of the Lake Shore Company for said injuries received by him while in the employment of the latter company. The Lake Shore Co., after inspecting- and accepting said car at Erie, certainly could not hold the plaintiff in error responsible for an!y defects which might subsequently appear in said car. In this respect we claim that the master acts • for its servants, and if the master is concluded by the acceptance of the car at Erie, then its servants should also be concluded ; and if there was any negligence in the Lake Shore Co. in its inspection, acceptance or subsequent management of said car, by reason of which its employe became injured, then said Lake Shore Co. should alone be responsible for such negligence. The testimony shows that the Lake Shore Co. accepted said car at Erie, under a contract to pay the plaintiff in error a certain amount of the freight earnings. The relations of said company, thereafter, became that of bailor and bailee, and the bailee is responsible for all injuries resulting from the use of said car. Kohl v. Love, 37 N. E. L., 5; Winterbottom v. Wright, 10 Mees. & W., 109.
    There was no privity of contract between the plaintiff in error and the defendant; they were strangers to. each other. It is true that there is a class of actions in tort maintained on the ground that the wrongful acts ¿>n the part of the defendant are in themselves imminently dangerous, and from which a general liability arises to anyone who receives injuries, which are the natural and probable consequences of such wrongful acts. Thomas v. Winchester, 6 N. Y., 397; Smith v. N. Y. C. & H. R. R. Co., 19 N. Y., 127.
    But we maintain that the present case does not come within' that principle; the liability of the plaintiff in error in respect to the condition of its cars did not extend beyond those to whom it owed some duty by reason of its relation to them as master or employer.
    3. The jury found under the evidence and instructions of the court that the car in question was defective at the .time it was delivered by the plaintiff in error to the Lake Shore-Co., at Erie, Pa. The court below held, as a matter of law, that if the said car was defective and such defect could have been determined by a reasonable inspection by the plaintiff in error before it was delivered to the Lake Shore Co., then the plaintiff in error would become liable for injuries received by an employe of the Lake Shore Co. thereafter, by reason of such defects, notwithstanding the subsequent inspection by the Lake Shore Co. and the use and control by that company of the car at the time of the injury.
    Now, admitting that the Pennsylvania Railroad Co.. was negligent as charged, we claim that it cannot be held liable in this action, for the reason that a responsible agent intervened between the plaintiff in error and Snyder, and that such responsible agent is alone liable for his injuries. The rule of law is stated by Wharton on Negligence, section 134:
    The negligence of the Pennsylvania Railroad Co. in its inspection of said car at Erie cannot be said to had been the cause of Snyder’s injury; intervening between that and the injury, came the inspection, acceptance and actual use of said car by the Lake Shore Co.; it was, therefore, the intervening negligence of the Lake Shore Co. which was the direct cause of the injury complained of. Ashley v. Harrison, 1 E. S. P., 48; Crain v. Petrie, 6 Hill, 522; Stevens v. Hartwell, 11 Met., 542; Losse v. Chute, 51 N. Y., 494; Bank v. W. U. T. Co., 30 Ohio St., 555; Loop v. Litchfield, 42 N. Y., 351; Carter v. Town, 103 Mass., 507. Sherman and Redfield on Negligence, Sec. 34.
    If it can be argued that the employes of the Lake Shore Co. had knowledge of and relied upon the- inspection of the Pennsylvania Railroad Co., still we say they knew that the Lake Shore Co. would make a subsequent inspection before said car was accepted for use, and that if there was any fault in the inspection of' the former company, the latter would cure such fault and detect any defects which might be observable by reasonable care.
    When, therefore, the plaintiff below dismissed the case as to the Lake Shore Co. we contend that no right of action remained as to the Pennsylvania Railroad Co. for the reason that the Lake Shore Co. was primarily and solely responsible for the plaintiff’s injuries. Gleason v. Detroit, G. H. & M. Ry. Co., 73 Fed. Rep., 647; Shaefler v. Sandusky, 33 Ohio St., 246; Village of Conneaut v. Naef, 54 Ohio St., 529.
    We therefore claim that judgment below should be reversed for two reasons:
    1. That the Lake Shore & Michigan Southern Railway Co., and not the plaintiff in error, is the responsible party;
    2. That the defendant in error was guilty of such contributory negligence as in law prevents a rec'overy.

      Surd, Brumbach <& Thatcher, for defendant in error.
    Is the Pennsylvania Co. liable to an employe of the Lake Shore Co. for injuries received by him on account of defects in a car belonging to the former company, existing at the time of its delivery to the latter company which defects the Pennsylvania Co. could have discovered by ordinary inspection?
    1. The Pennsylvania Co. knew upon the delivery of the car in question to the Lake Shore Co. that to transport the same to Detroit necessarily required that brakeman should go up and down the ladder with which it was furnished. It, therefore, was in duty bound to have the ladder in a reasonably safe condition.
    2. As a common carrier it owed a duty to the public to have its cars in repair so as not to cause injury to anyone who might be rightfully on or about the same. The Pennsylvania Co. has failed in' its duty and is therefore liable for the damages which Snyder has suffered by reason of such failure.
    We claim in the case at bar that the Pennsylvania and Lake Shore Co.’s are in effect partners in the transportation of through freight from the east to the west. The Pennsylvania Co., as shown by the evidence of the manager of its freight line, owns five thousand cars and gathers up freight wherever it is able to do so, furnishes the cars for its transportation, and then makes a traffic arrangement with other railroads for the transportation, of cars. That it considers itself liable for the condition of its cars when it delivers them to connecting roads is shown by the evidence that before delivering its cars to the Lake Shore road it inspects them and sees that they are in good order. In addition to the inspection it holds itself open to pay for all repairs which the Lake Shore Co. may be required to make on account of defects existing at the time of the delivery of the cars to the Lake Shore Co. Thus it is apparent that the Pennsylvania Co. recog-, nizes that by its contract with other railroad companies it is in duty bound to keep its cars in proper condition before delivery. That the law imposes this duty upon that company is no longer in doubt. Moon v. Northern Pac. R. Co., 48 Amer. & Eng. R. R. Cases, page 195, (46 Minn. 106) and cases therein cited.
    Counsel for plaintiff in error, although he admits that the car was defective at the time of its delivery to the Lake Shore Co., yet contends that the Pennsylvania Co. lost all control over the car while it was in the possession of the Lake Shore Company. As heretofore stated, we claim that the contract relations between the two companies in questiou were such as to make the Lake Shore Co. in effect either the agent of the Pennsylvania Co. or its partner in the transaction. The latter company must be bound by all the acts of the Lake Shore Co. pertaining to the use of the car. If, however, such relation did not exist, then the owner of the ear was a bailor or lessor and the employer of Snyder was a bailee or lessee. Can it be said that a bailor or lessor is not liable to a person who receives injuries by reason of the defective condition of the thing let, when such defects existed at the time of the letting? We think not. Schindelbeck v. Moon, 32 Ohio St., 264.
    It is claimed that the Pennsylvania Co. is not liable because the casual connection between the delivery of the ear at Erie and the receipt of the injury was broken. He claims that the Pennsylvania Co. cannot be held responsible for anv defects which might “subsequently appear” in said car.
    That the Pennsylvania Co. must have anticipated the result which did come cannot be doubted. Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S., 469.
    Snyder was not guilty of contributory negligence.
    Where one is placed by the negligence of another, in the face of impending peril and becomes bewildered or is compelled to choose between two hazards, and the injury results to him after he makes a choice, acting as a prudent person might under the circumstances, the fact that had he acted otherwise or chosen the other hazard he would not have been hurt, will not establish contributory negligence. South Covington & Cin. St. Ry. Co. v. Gare, 84 Ky., 267; Stokes v. Saltonstall, 13 Peters, 181; Voak v. Northern Central R. R. Co., 75 N. Y., 320; Wheelock v. Boston & Albany R. R. Co., 105 Mass., 203; Government Street R. R. Co. v. Hanlon, 53 Ala., 70-77; Marks v. St. Paul, Minn. & Manitoba R. Co., 30 Minn., 493; North Chicago St. R. Co. v. Louis, 35 Ill. App., 477; Penn. R. R. Co. v. Roney, 89 Ind., 453; Knowlton v. Milwaukee St. Ry. Co., 59 Wis., 278; Moore v. Central R. Co., 47 Iowa, 688 ; Coulter v. American Express Co., 56 N. Y., 585; 2 Thomp. on Neg., section 1092; Elliott on Roads and Streets, 609; Twombley v. Central Park & E. R. R. R. Co., 69 N. Y., 158; Dyer v. Erie Ry. Co., 71 N. Y., 228; Iron R. R. Co. v. Mowry, 36 Ohio St., 418; Wilson v. Northern Pac. Ry. Co., 26 Minn., 228 ; Georgia R.

      R. etc. Co. v. Rhodes, 36 Ga., 645 ; Mobile R. Co. v. Ashcraft, 48 Ala., 15.
    The basis of the doctrine in question is that persons in great peril are not expected to exercise the same presence of mind as a careful and prudent man under ordinary circumstances. Such a person under like circumstances might possibly . do the same thing. (Beach on Contrib. Neg., section 14). The question, therefore, in such cases is not what a prudent person would do under ordinary circumstances, but what he might have done under the circumstances of peril present in the case. In the case at bar Snyder had no notice whatever of the danger until he was in a position too late to escape from it. As heretofore stated, the jury has found that Snyder was not guilty of contributory negligence and this court is not called upon to review that finding.
   Williams, C. J.

It is not disputed that the plaintiff below received the injury of which he complains, in the manner alleged in his petition; nor is it contended there is any sufficient ground for disturbing the finding of the jury that the plaintiff in error was guilty of the negligence with which it is charged. One contention of the plaintiff in error is, that its negligence was not the proximate cause of the injury; that the casual connection was broken by the intervening negligence of the Lake Shore Company which, it is claimed, is alone responsible for the injury.- An instruction to that effect, which the court was requested to give in charge to the jury was refused, and in that way the question is presented. The record discloses that the Empire line of freight cars, to which the car in question belonged, was owned and operated by the plaintiff in error for the transportation of through, freight collected on its Philadelphia & Erie Division, over the road of the Lake Shore Company, from its connecting point at Erie, to stations on its line and on other connecting lines, under a traffic arrangement between the companies by which theywere to share inthe earnings of the transportation according to the distance the cars should be hauled over their respective roads. Under the arrangement, the plaintiff in error, before delivering its cars to the Lake Shore Company, was to have them properly inspected and put in safe condition for hauling; and it was also understood that the company receiving the cars should have them inspected when received. The company hauling a car was required to provide the oil and other supplies for keeping it in running condition, and to repair any damage done to the car while in its possession; all other repairs to be at the expense of the plaintiff in error. The car in question, when delivered to the Lake Shore Company to be hauled over its road, was defective and unsafe in the respects described in the petition, which a proper inspection would have discovered ; and the negligence of the plaintiff in error consisted in the failure to make such inspection, and delivering the car to the Lake Shore Company without having first put it in a safe condition for transportation; while the negligence of the latter company was its omission to have the car properly inspected, and hauling it in its defective condition. The liability of the latter company for that negligence cannot well be denied. It was under no obligation. to receive and place in charge of its employes a car with defective and dangerous equipments; -and the rule which requires the observance of due care on the part of the employer in providing machinery and appliances that are safe and suitable for the use of the servant in the course of his employment, is not limited to such as are the property of the employer. It is not any the less obligatory upon a railroad company, for the protection of its employes, to see that foreign cars run over its road are not so defective as to be dangerous, than it is to see that its own are free from dangerous defects. But it does not follow that because the Lake Shore Company is liable for the damages sustained by the plaintiff below, the plaintiff in error may not be, also. To relieve the latter from the consequences of its negligence, it is not enough that the act of the Lake Shore Company was nearest in the order of events to the injury, nor that without it the injury would not have occurred; to have that effect it must have been the efficient, independent, and self producing cause, disconnected from the negligence of the plaintiff in error. The casual connection is not broken, “if the intervening event is one which might in the natural course of things be anticipated as not entirely improbable, and the defendant’s negligence is an essential link in the chain of causation.” Sherman and Red-field on Neg., section 32 (4th ed.) It is not essential to the liability of the plaintiff in error that its negligence should be the sole cause of the injury; but if that result was produced by the negligence of both companies, each contributing a necessary condition to the result, either, or both, might be held . responsible at the election of the party injured; neither could claim exoneration on account of the fault of the other. The negligence of the plaintiff in error was undoubtedly the primary cause. If it had not furnished the defective car, the injury could not have occurred. Neither could it, if the Lake Shore Company had not run the ear over its road; and it might not have done so, if that company had made a proper inspection of the car. But it was the act of that company in hauling the car over its road, that contributed to bring- about the injury, rather than its failure to have it properly inspected; for if the car had not been so moved, no injury could have happened, however negligent the inspection may have been. The most that can be claimed from the omission of the proper inspection by the Lake Shore Company is, that it failed to cure or remove the previous negligence of the plaintiff in error, and thereby interrupt the consequences which were likely to, and did flow from it. That failure cannot with propriety be said to have broken the connection between the negligence of the plaintiff in error and the injury resulting from the use of the defective ear, or to have been the self operating cause of the injury. That the car would be hauled over the road of the Lake Shore Company, was contemplated by both of the companies when it was delivered; it was' delivered for that purpose. The plaintiff in error knew it could not be so hauled without the services of brakemen and other employes of the company hauling it, and ordinary prudence would suggest that if it furnished a defective car, or failed to observe due care in providing cars that were reasonably safe and fit for the service contemplated, those employes might, and probably would, suffer injuries in consequence. The jury might therefore properly find, as they did under instructions to which no exceptions were taken, that while the negligence of the Lake Shore Company was a contributing condition to the injury sustained by the plaintiff below, the negligence of the plaintiff in error was the culpable and proximate cause.

It is further claimed that the plaintiff in error was under no obligation or duty to the employes of the Lake Shore Company to exercise care in the inspection of cars furnished the latter company, or in making repairs necessary to have them in proper condition; and, as both ■ companies were mutually in fault with respect to the car in question, so that neither could be made liable to the other, the plaintiff below was without remedy against the Pennsylvania Company, because his injury was received while acting exclusively under the employment of the Lake Shore Company; the servant being bound, it is argued, by the act of the master. We think this position is not tenable. It was not necessary to the liability of the plaintiff in error that a contractual relation should exist between it and the plaintiff below, nor that the injury should be one resulting from the violation of a duty it owed the general public. Whenever' a person should reasonably apprehend that,- as the natural and probable consequences of his act or neglect, another will be placed -in a situation of danger of receiving an injury, a duty of exercising due care to prevent such injury arises; and if the injury results from the failure to use such care, a liability to the person injured will generally'exist, in the absence of any other controlling fact. As said in Bishop, on Non-contract Law, section 528, “One’s responsibility for his acts is not limited to their immediate effects. He is liable also for their natural and probable consequences. * * * Nor is it material whether those consequences come from the acts alone, or from them and subsequent independent forces operating with them, provided those forces are of a sort reasonably to be anticipated. ’ ’ The test is to be found in the probable injurious consequences to be anticipated, and not in the number of subsequent events and agencies that may arise. It has already been observed that the traffic arrangement between these two railroad companies contemplated that cars furnished bj^ the plaintiff in error to the other company would be handled by the employes of the company receiving them, and a prudent person would reasonably anticipate and foresee that such employes would be exposed to the danger of receiving injuries in handling a defective car so furnished, or one with defective appliances ; and, therefore, the plaintiff in error owed a duty to such employes operating a train in which such a car might be placed, which was to use reasonable care in making inspection of the cars and putting them in safe condition, before they should be placed in charge of the employes. The services of such employes being necessary to accomplish the transportation intended, the delivery of a car to be transported over the road, amounts to an invitation to the employes to go upon and handle it, and an assurance that they may safely do so in the course of their employment in transporting it to its destination. The case of Moon v. Northern Pacific Railroad Company, 46 Minn. 106, is quite like the one before us in its features thus far considered, and presents substantially the same questions. That is a well-considered case, and the decision is in harmony with our view of the law.

Another g-round urged for the reversal of the judgment is, that the evidence, without conflict, establishes negligence on the part of the defendant in error which contributed to the injury he sustained. Without entering into a general review of the evidence relating to the manner in which the injury was caused, or the conduct of the defendant in error, it is sufficient to say that, without his fault, and while in the performance of his duties in handling the oar in question, he found himself in a situation of danger, on account of a defective ladder attached to the car which, at the time, he was attempting to ascend in order to manage the brakes as his duties required. The ladder had one broken round and was loose and shaky; but that was not discovered by him until after he had got up on it and was in the effort to reach the top of the car. While engaged in that effort, and in a very brief time after he stepped on the ladder, he was thrown to the ground and injured. It is claimed that when he discovered the danger he was in, he should have stepped to the ground, and that he could have done so with safety. By his failure to do that, it is contended, he brought about the injury, or at least contributed to produce it. When confronted with his peril, two ways of escape would naturally be suggested: one to leap from the car to the ground, and the other to do as he did, strive to reach the top of the car. It is not certain that the adoption of the former course presented by the alternative would have proven better than the latter; it might seem so from a deliberate survey of the situation after the disaster had occurred; but when it is considered that it occurred in the darkness of the night, while the car was in motion, without opportunity of accurate observation of the condition of the ground, it is little more than conjecture that the defendant in error could, or would, by leaping- to the ground, have escaped injury. And, in the exigencies of the situation in which he was placed, it could neither be expected nor required that he should exercise the same deliberate judgment that prudent persons would exercise-where no danger is present, nor make the most judicious choice between hazards. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of the existing peril; and is one of fact for the jury. Measuring the conduct of the defendant in error by this rule, the jury have found he was not guilty of contributory negligence, and our duty does not lead us into an inquiry to ascertain on which side the preponderance of the evidence may be found.

Judgment affirmed.