author: Donahue, J.

text:
    The Lake Shore & Michigan Southern Railway Company v. Benson, Administrator.

      A derrick or crane operated by railway company — For unloading materials in construction of dock — And not employed in business of company — While company is operating as common carrier — Machine not required by Sections 8950 and 8952, General Code — To be equipped with automatic coupler — Use of said machine in shifting cars on dock — Does not bring machine under provisions of said sections.

    1. A whirley, derrick or locomotive crane built upon car trucks, and equipped with a boiler and engine furnishing the power to operate the crane, and to move the machine about upon the railroad tracks in the vicinity where it is being operated by a railway company for the purpose of unloading heavy materials to be used in the construction of docks, and not employed by the railway company in its business as a common carrier in moving state traffic, is not, while being so operated, a “locomotive, car, tender or similar vehicle used in moving state traffic,” required by Section 8950 (3365-276, Revised Statutes) and Section 8952 (3365-27d, Revised Statutes) of-the General Code to be equipped with an automatic coupler and provided with drawbars of standard height.

      2. Where a railway company, as a common carrier, has deposited on tracks built upon, a partly constructed dock, cars loaded with materials to be used by it in the further construction of such dock, the use of this machine to shift these loaded cars a short distance to meet the needs and convenience of the employes engaged in unloading the same, does not bring the machine, during the time it is so employed, within the provision of these sections.
    (No. 13087 —
    Decided January 16, 1912.)
    Error to the Circuit Court of Ashtabula county.
    On the 5th day of May, 1909, the defendant in error as administrator of the estate of John Lutyan, deceased, filed a petition in the common pleas court of Ashtabula county against the plaintiff in error, The Lake Shore & Michigan Southern Railway Company, praying damages against said defendant for negligently causing the death of his decedent, and on the 25th day of September, 1909, said plaintiff filed his amended petition in said cause averring his appointment as administrator, the corporate capacity of the defendant company, and that it was engaged in maintaining and operating a line of railway in carrying passengers and freight from the city of Buffalo, New York, and into and through the city of Ashtabula, Ohio; that in connection therewith it had a dock upon the lake front, upon which dock were certain railway tracks, and a certain machine or locomotive crane that it used for switching railroad cars over and along the tracks on said dock; that the end of said locomotive crane was of improper and unlawful construction in that the draw bar was more than six inches below the standard height of standard gauge locomotives or cars, and that the coupler was of the link and pin type, so that said locomotive crane and standard gauge cars would not couple automatically upon impact, but would make it necessary for employes to go between said locomotive crane and the cars about to be shifted; that on the 30th day of March, 1909, John Lutyan was in the employ of defendant company upon said dock under the control and direction of its foreman, John Eastman, and that his duties required him to work in, around and upon said locomotive crane; that said Lutyan was ordered and directed by said Eastman to go in between the front end of said locomotive crane and a railroad car standing upon the railroad tracks on said dock, and there to adjust a certain iron push bar between said respective draw bars, and that while Lutyan was attempting so to do, and before he could so adjust such push bar, the said foreman John Eastman, and one Olson, who was then in the employ of defendant company as an engineer in control of and operating said locomotive crane, acting jointly, and without giving Lutyan any notice or warning, caused and permitted said locomotive crane to move towards said car in such manner that plaintiff’s decedent was caught and crushed so that he died, and averred that the injuries so received by Lutyan, and which resulted in his death, were directly and proximately caused and contributed to by and through the gross negligence and unlawful conduct of defendant company.

      First. In and about having and using said locomotive when the said draw bar was below standard height, as aforesaid.
    Second. In causing and permitting said crane to be moved along said track before plaintiff’s decedent had sufficient time to adjust said bar, as aforesaid;
    Third. In failing and neglecting to give plaintiff’s decedent any notice or warning of the aforesaid movement of said crane, as aforesaid;
    Fourth. In causing and permitting said crane to run against plaintiff’s decedent, as aforesaid;
    Fifth. In hauling and using said locomotive crane when said coupler was of such improper construction that it would not couple automatically upon impact, as aforesaid.
    The amended petition further averred that Lutyan was at the time of his death 46 years of age, earning and able to earn $1.20 per day; that he left surviving him as next of kin Bertha Lutyan, his widow, and three children, Anna, aged 14 years; John, aged 10 years, and Ellen, aged 8 years, for whose benefit the action is brought, and prayed damages in the sum of ten thousand dollars.
    The defendant on the 30th of December, 1909, filed an amended answer to the amended petition admitting the appointment and qualification of the plaintiff as administrator of the estate of John Lutyan; admitting that the defendant was a railway corporation duly organized and existing under the laws of the state of Ohio and engaged in maintaining and operating a line of railway carrying passengers and freight from the city of Buffalo, New York, into and through the city of Ashtabula, Ohio; that as such railway company and in connection therewith it had Dock No. 1 at Ashtabula, Ohio, upon which dock were certain railway tracks and machine; that defendant at all times maintained and operated a locomotive crane, which was then and there, among other things, used to move or unload cars on said track; further admitted the injury to Lutyan resulting in his death; admitted his age and his earning capacity and that the persons named in the amended petition were his widow and children, and denied all allegations and statements contained in the amended petition not specifically admitted. And for further answer the defendant expressly denied that it was in any way careless or negligent in the premises, but averred that the decedent was guilty of gross contributory negligence, which directly contributed to and produced the injury and death complained of in the petition. It further averred that said defendant and a fellow servant were guilty of gross contributory negligence which directly contributed to and produced the injury and death of Lutyan; that Lutyan was not at the time in the execution or performance of any duty enjoined upon him as the employe of the defendant at the time of said accident, but was a mere volunteer, and as such volunteer wholly failed and neglected to raise and properly adjust the iron bar to the coupling appliances on the car, which was the direct and proximate cause of the injuries set out in the petition.

      Plaintiff filed a reply denying every allegation in the amended answer not an admission of the allegations of plaintiff's amended petition.
    Upon the issues so joined the cause was tried in the common pleas court to a jury, resulting in a verdict for plaintiff in the sum of $4,100. The defendant filed a motion for a new trial, which was overruled and judgment was entered upon the verdict. Error was then prosecuted by the defendant in the circuit court of Ashtabula county, which court affirmed the judgment of the common pleas court, and this proceeding in error is now brought in this court to reverse the judgment of the common pleas and the judgment of the circuit court affirming the same.

      Messrs. Hoyt, Munsell & Hall, for plaintiff in error.

      Mr. D. F. Anderson, for defendant in error.
   Donahue, J.

The correct solution of the questions presented by the record in this cause depends upon whether sections 2 and 4 of an act of the general assembly of Ohio, passed March 19, 1906, to promote the safety of employes and travelers upon railroads, applies to the facts in this case. Section 2 of that act is now Section 8950, (3365-27b, Revised Statutes) of the General Code and reads as follows: “No such common carrier shall haul, or permit to be hauled or used on its line, a locomotive, car, tender, or similar vehicle used in moving state traffic, not equipped with couplers coupling* automatically by impact, and which can be uncoupled, without the necessity of men going between the ends of the cars.” Section 4 of that act is now Section 8952 (3365-27d‘, Revised Statutes) of the General Code, and reads as follows: "No such common carrier shall use a locomotive, tender, car, or similar vehicle used in the movement of state traffic, that is not provided with drawbars of the standard height, to-wit: Standard gauge cars, thirty-four and one-half inches; narrow gauge cars, twenty-six inches, measured perpendicularly from the level of the tops of the rails to the centers of the drawbars. The maximum variation from such standard heights between drawbars of empty and loaded cars shall be three inches.”

The wisdom of this legislation is very apparent. Railroading at its best is necessarily a dangerous and hazardous employment, and therefore, all legislation looking to the protection of the lives and personal safety of the men engaged in this employment should receive as liberal a construction as the language of the act will permit. True all legislation of this character is in derogation of the common law of negligence and a court is not permitted to read into the act anything that does not come within the clear meaning of the language used therein, but it should be given such liberal construction as will accomplish the purpose and intention of the legislature and courts should frown upon all expediencies and subterfuges em ployed to avoid complying with its requirements. This class of legislation, because of its humane purpose and because of the evils sought to be corrected and avoided thereby, should be strictly enforced by the courts, and courts have given not only a liberal construction, but have vigorously enforced these and similar laws, seeking to protect the person and lives of those engaged in dangerous employment. Schlemmer v. Railway Co., 205 U. S., 1; United States v. Railway Co., 149 Fed. Rep., 486; United States v. Terminal Co., 144 Fed. Rep., 861; Chicago Junction Ry. Co. v. King, 169 Fed. Rep., 372; St. Louis & Iron Mountain Ry. Co. v. Taylor, 210 U. S., 281; Voelker v. Railway Co., 116 Fed. Rep., 867; United States v. Railway Co., 157 Fed. Rep., 893; McGarvey v. Railway Co., 83 Ohio St., 273.

There is no conflict of evidence in this record as to the nature and character of this machine, nor is there any serious conflict as to the uses and purposes to which it was applied by the defendant company.

At the time this accident occurred the plaintiff in error was engaged in the construction of a dock known as Superior Dock, or Dock No. 1, at Ashtabula Harbor. This dock was being built out into Lake Erie with slips for boats to enter, and with a powerhouse and machinery and appliances for unloading and transferring coal and iron ore and other heavy freight. At the time of the injury to plaintiff’s decedent this dock was in process of construction and was not then being used for railroad purposes. It was, however, connected with the defendant’s railway by two tracks extending about a mile from Ashtabula river to Ashtabula Harbor which tracks were used only for bringing timbers, structural iron, stone and other materials to be used in the construction of the dock itself and when it had been constructed to such height as would permit of the same, the defendant' placed tracks thereon for the purpose of enabling it to deliver these materials in the immediate vicinity in which they were to be used in the further construction of the dock. On these tracks located upon the partly constructed dock was the machine described in plaintiffs petition and named therein as a locomotive crane. It appears that this machine was in fact a crane or derrick for handling heavy materials, and was equipped with a steam boiler and engine that furnished it with the power not only to operate the derrick or crane, but also furnished it with power to move about upon the tracks on the partly constructed dock to such places as it was desired to use the same. It also appears that it had sufficient power of locomotion to move at least one loaded railroad car at a time and it was used as occasion required to shift cars loaded with material for use in the construction of the dock from place to place upon the tracks hereinbefore referred to, and it was being so used at the time the accident occurred. It further appears that it was not used by the defendant company in the line of its railroad or for the moving of any cars, except those on the temporary tracks located on the partly constructed dock which were loaded with materials to be used in and about the further construction of such dock, and except for this its sole use and purpose was that of a derrick or crane for handling heavy materials. It also clearly appears from the evidence that it was not equipped with an automatic coupler, nor was it provided with drawbars of standard height.

The United States supreme court in the case of Schlemmer v. Railway Co., 205 U. S., 1, held that the provisions of section 2 of the safety appliance act of March 2, 1893, as amended April 1, 1896, “relate to all kinds of cars running on rails, including locomotive and steam shovel cars.” In that case the steam shovel car was coupled into a train being hauled upon the defendant’s line of railway through the state of Pennsylvania to a point in the state of New York and presented a very different question from the one arising in this case. As further evidencing the liberal construction given by courts to this class of legislation it was held by that court in the same case that, “The object of that statute was to protect the lives and limbs of railroad employes by rendering it unnecessary for the men operating the couplers to go between the ends of the cars and the words ‘used in moving interstate traffic,’ occurring therein are not to be taken in a narrow sense.”

In the case of Chicago Junction Railway Co. v. King, 169 Fed. Rep., 372, it was held that, “There is nothing in the safety appliance acts that limits the classes of persons to whom the carrier shall be responsible for damages that result directly and immediately from its illegal doings.”

In the case of the United States v. Railway Co., 149 Fed. Rep., 486, it was held that, “A carrier operating its own construction train which hauls its own rails and products from a point in one state to a point in another state, is engaged in interstate commerce.”

It would, therefore, appear from tnese and many other decisions not necessary to quote at length, that the courts have taken a broad, liberal and comprehensive view of these statutes, and by such liberal construction have made them efficient to accomplish the object and purposes for which they were enacted, with all of which this court is in full accord.

In this case the evidence shows conclusively that this machine is not one that comes within the ordinary equipment of railroads, and is not one designed for railroad use, but on the contrary that it is an instrumentality provided and used by the company, not on the line of its road, or upon any part of its system, not in any connection whatever with its railroad business, or its duties as a common carrier, but solely and exclusively for the construction of its dock not then a part of the railway system and not then being used for any railroad purpose whatever. The use for which this machine was constructed, and the one that g'ives character to it, was that of a crane or derrick used for handling heavy materials in construction work, and there can be no reasonable contention that while it was used as a crane or derrick that it would come within either the language or the meaning of these sections, nor can it reasonably be contended that the fact that a railway company used this machine for construction work, work entirely separate and apart from its business as a common carrier, and entirely separate and apart from its railway system would bring this machine within the purview of these sections. On the other hand, it is equally apparent that the railway company might have made such use of this machine that both of these sections would apply.

It is contended on behalf of the plaintiff in error that these tracks connecting the dock in process of construction with its railway system, were temporary tracks, and that the only cars that were hauled over these tracks were those loaded with material for use in the construction of the dock, but neither of these contentions is important in the determination of the questions in this case. If this machine, regardless of the name by which it was known or designated, had been used by the railway company on the line of its road, either for the purpose of a locomotive, or for any other purpose in furtherance of, and as a part of its railway business, then the character of the tracks and nature or ownership of the material with which the cars were loaded would be of little importance, for by such use this machine would come not only within the meaning, but the terms of these statutes requiring automatic couplers and requiring drawbars of standard height.

The evidence of use relied upon by the defendant in error to bring this machine within the operation of these sections is, that after the railway company, as a common carrier, had performed all its duties as such by delivering the loaded cars upon the temporary tracks constructed on the partly built dock, that in furtherance of the construction of the dock this derrick, or crane, was used as the power for shifting these cars to the desired position on the track for unloading, or for moving cars, so that they would not interfere with the unloading of other cars. The fact that the railway company was building its own dock and had not let the construction thereof to a private contractor ought not to cause any confusion in determining the character of the use to which this machine was put. The construction of this dock by the railway company was wholly apart, and wholly separate, from its business as a common carrier, and after the railroad company had deposited these loaded cars upon the partly built dock, its duties as a common carrier were ended, and from that time forward whatever was done in and about the construction of the dock was a totally different enterprise, just as much as if an entirely different company, or contractor, was engaged in this construction, and after these cars had been delivered by the railway company would then take charge of these materials and apply them to their use in the building of this dock. If a private individual had been engaged in this work, this machine would have been just as necessary to his use in this construction as it was to the company’s use, and yet under such circumstances it would hardly be claimed that these sections apply.

This case does not come within the principle, or the reasoning of either of the adjudicated cases hereinbefore referred to. In all of these cases the controversy arose over cars used on the line of the company’s road, or in connection with the railroad business. • This machine was not coupled into the company’s train, was not used on the line of the company’s railway, and was not used in any connection whatever with the company’s business as a common carrier, but on the contrary was used for the sole and only purpose of furthering the construction of this dock, which was then not used by the railway company as a part of its system and not connected therewith except by these tracks for delivering material to be used in the completion of the dock. If the dock had been completed and the railway company had then been using the same as a part of its system and employing this crane or derrick in the furtherance of its business to move the cars about upon the dock to be unloaded into the boats or loaded from the boats, a very different question would be presented.

It may be that from the nature and construction of this machine it was not a proper instrument to use for the moving of loaded cars in and about this construction work, but whether it was proper or not for this service, the liability of this company for using the same separate and apart from its railroad business, and in and about an entirely different enterprise than the operation of its railroad, cannot be measured by any other rule or standard than the liability of any other employer not a common carrier engaged in a similar work.

For these reasons the common pleas court erred in refusing to give, before argument, the first, second and third requests of the plaintiff in error, and erred in stating in its general charge to the jury that this machine came within the operation of Section 3365-27b, Revised Statutes, and Section 3365-27d, Revised Statutes, and for these errors the judgment of the common pleas court and the judgment of the circuit court affirming the same are reversed and cause remanded to the common pleas court for further proceedings according to law.

Reversed.

Davis, C. J., Shauck, Price and Johnson, JJ., concur.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    The Ohio Electric Railway Company v. The Village of Ottawa.

      Municipal corporation has no authority — To compel street railroad company — To light its bridge within limits of ' corporation— Section 1536-176, Revised Statutes.

    A municipal corporation has no authority to compel an interurban or street railroad company to light its bridge or railroad within the limits of such corporation. Section 1536-176, Revised Statutes, applies only to steam railroads.
    (No. 12866 —
    Decided January 16, 1912.)
    Error to the Circuit Court of Putnam county.
    The village of Ottawa brought suit in the court of common pleas of Putnam county against The Ohio Electric Railway Company, to enforce the collection of a claim which the village had for lighting the tracks of the railway. The petition after averring the incorporation of the parties alleged that the defendant operated cars through said village on certain streets named; that the defendant had prior to the commencement of the suit succeeded to all the rights of a prior company owning said tracks; that on May 6, 1907, the council of the village passed an ordinance by the provisions of which, it required The Lima & Toledo Traction Company, which was the predecessor in title to the defendant, to light its tracks within the limits of said village with 40 candle power incandescent electric lights located as named in the ordinance; that a copy of the ordinance was served on The Lima & Toledo Traction Company; that upon failure of the company to light its tracks as required by said ordinance the village furnished the same and demand was made of the defendant for the cost of said lights, which was refused.
    To this petition defendant hied a general demurrer, which was sustained by the common pleas court and the petition dismissed. This judgment was reversed by the circuit court and this proceeding is brought, seeking to reverse the judgment of the circuit court and affirm that of the common pleas.

      Mr. J. W. Smith and Messrs. Cable & Parmenter, for plaintiff in error.
    The legislature, the courts of the state, — common pleas, circuit and supreme, — uniformly hold that interurban railways are classed with street railways and not with steam railroads, and that statutes regulating the latter class of companies have no application to the former, except when made so to do by clear reference. Loan & Trust Co. v. Hamilton, 88 Fed. Rep., 588; State v. Traction Companies, 18 C. C., 490, 64 Ohio St., 272; Railway Co. v. Telegraph Assn., 48 Ohio St., 390; Traction Co. v. Traction Co., 47 W. L. B., 854; Bridge Co. v. Iron Co., 59 Ohio St., 179; Railway Co. v. Railroad Co., 21 C. C., 391, 64 Ohio St., 550; Railway Co. v. Traction Co., 26 C. C., 1, 72 Ohio St., 645; Railway Co. v. Railway Co., 26 C. C., 180, 73 Ohio St., 364; Railroad Co. v. Lohe, Admr., 68 Ohio St., 110; Greene v. Railroad Co., 62 Ohio St., 67; Commissioners v. Traction Co., 75 Ohio St., 548.

      Messrs. Bailey & Leasure, for defendant in error.
    We admit that in some instances and for certain purposes this court has classed interurban electric railroads with ordinary street railroads, but at the same time we contend that the trend of later decisions establishes the principle that an interurban electric railroad running from town to town assumes the burden and obligations of a steam road and should be held accountable for negligence in operation of its cars to the same extent that a steam road is held. And such interurban cars in passing through municipalities become the source of as much or more danger than the trains operated on steam railroads; that therefore there is no reason for such distinction on the question of lighting tracks, and electric roads should be held amenable to the act requiring railroads to use every consistent precaution necessary to avoid the destruction of life and property, and that the lighting of such tracks is such necessary precaution as the public is entitled, even under the present legislation and the decisions of this court. Railroad Co. v. Anchors, 114 Ala., 492; Railway Co. v. Railway Co., 95 Wis., 561, 37 L. R. A., 856; Abbott v. Light, Heat & Traction Co., 126 Wis., 634; Diebold v. Traction Co., 117 Ky., 146, 63 L. R. A., 637; Zehren v. Ry. & Light Co., 99 Wis., 83, 41 L. R. A., 575; Marsh v. Light, Heat & Traction Co., 134 Wis., 384, 114 N. W. Rep., 804.
   Johnson, J.

The demurrer to the petition raised the question whether a municipal corporation has the power to compel an interurban railroad company, operating its cars by electricity, to light its railway or any portion thereof within the limits of the municipality, and there is no other question in this case.

Defendant in error contends that the ordinance requiring the lighting which is referred to in the petition, was authorized by Section 1536-176, Revised Statutes, while plaintiff in error insists that the section applies only to steam railroads and not to street or interurban railroads. The section referred to provides that when deemed necessary by the council, it shall pass an ordinance requiring the individual or company owning or operating a bridge or railway within its limits, to light such bridge or railway within a specified time. Section 1536-179, Revised Statutes, provides that on failure of the owner or operator to comply with the ordinance within the time fixed the municipality may light the bridge or railway at the expense of the owner or operator. The legislature had enacted the original statute, from which Section 1536-176 was taken, long before the existence of interurban or electric railroads. A consideration of the course of legislation on the subject, which has been gathered and set forth in the briefs of counsel, discloses that the general assembly has not regarded interurban railroads as being included in the term “railroad,” but that interurban railroads have been classed by the legislature with street railroads.

This court has recognized and enforced that distinction and classification in a number of cases, and has held that statutes as to railroads, do not apply to street railroads unless clearly provided by the statute itself. Massillon Bridge Co. v. Cambria Iron Co., 59 Ohio St., 179; State v. Traction Companies, 64 Ohio St., 272; Cincinnati, Lawrenceburg & Aurora Elec. St. Ry. Co. v. Lohe, Admr., 68 Ohio St., 101; Commissioners v. Traction Co., 75 Ohio St., 548. The construction and operation of interurban railroads are authorized by act of May 17, 1894, 9.1 O. L., 285, being Sections 3443-8 to 3443-13, Revised Statutes. Section 3443-13 provides: “Such companies shall be subject to the same regulations now provided for street railroads, in so far as the same are applicable, and shall have all the powers in so far as they are applicable, that other street railroad companies have.” The subsequent acts of the legislature passed from time to time, since the enactment of the above statute, in reference to many different matters touching the subject, and in which the distinction pointed out has been preserved, sufficiently indicate its satisfaction with that distinction and classification.

Bridge Co. v. Cambria Iron Co., 59 Ohio St., 179, involved the construction of Sections 3207 and 3208, Revised Statutes, relating to the building of railroads and liens for labor and material employed in such building. It was claimed that the word “railroad” included street railroads and that the liens of laborers and material men were a first lien on a street and interurban railroad under the latter section. But it was held that the word “railroad” does not include street railroads, and the court state that interurban street railroads are not regarded by the legislature as being included within the word “railroad.”

State v. Traction Companies, 64 Ohio St., 272, was a contest as to the right of an interurban railway company and a company operating a road on the streets of a city, to enter into a traffic arrangement for the carriage of merchandise for hire, on the street. The court in the opinion remark: “It is well known that it was in response to a general demand for increased traffic facilities between cities and regions surrounding them that the act of May 17, 1894, which is now included in Sections 3443-8 to 3443-13 Revised Statutes, was enacted. In that act railways of this character wherever located, are called street railways.”

Electric Street Ry. Co. v. Lohe, Admr., 68 Ohio St., 101, was an action for negligence of the company by which a man standing on the platform of a moving car was killed. The court observed that the law of negligence, or rather of contributory negligence, of one riding on a platform of a street railroad car is not the same as of one riding on the platform of a steam railroad car, and then remark that interurban railroads are classed by the general assembly as street railroads.

The first proposition of law in the syllabus is: “An interurban electric railroad is classed as a street railroad by the statutes of this state.”

The subject was viewed from still another angle in Commissioners v. Traction Co., 75 Ohio St., 548. There the question arose on the interpretation of the act of April 25, 1904, “to provide how railroad and highway crossings may be constructed.”

It was contended by the commissioners that the word “railroad” in the statute included an interurban railroad. The court held otherwise and pointed out that the various acts of the legislature on the subject of railroads and street railroads, show that in the opinion and intention of the legislature the former term does not include roads of the latter description.

Counsel for defendant in error rely on the case of State v. Cleveland, 83 Ohio St., 61, and the circuit court seems to have adopted the view of defendant in error as to the controlling effect of that case on the question made here.

Defendant, Cleveland, was indicted for throwing a stone at a railroad car and in a second count, for throwing a stone at a street railway car. The proof showed that the car was in fact an interurban car. The statute under which the indictment was found, was originally passed in 1879 and provided that, “Whoever wilfully throws any stone, * * * at any railroad car,” etc.

In 1884 the statute was amended so as to include steam vessels or water craft and also added “at any cable railway car or street railway car.” This court in the syllabus declare: “A statute may include by inference a case not originally contemplated when it deals with a genus within which a new species is brought. Thus a statute making it unlawful to willfully throw a stone at a railroad car includes an interurban or traction railway, although such cars were not known or in use at the time the statute was enacted.” In the opinion it is pointed out that the maxim “expressio unius exclusio alterius” is to be applied only as an aid in arriving at intention and not to defeat the apparent intention, that the statute as originally enacted was broad enough to include any kind of railroad car and that the subsequent enumeration of cable cars and street railway cars was not the addition of new things, but was intended to remove any question as to such cars being within the terms of the statute.

It is to be noted that the thing, which the statute involved in that case, dealt with was the car itself. The railroad car was regarded and interpreted in its ordinary and generic sense, that is. a car which is propelled by some motive power and runs on rails, and which, therefore, would include any species of such cars which might afterward be invented and used. The case referred to is a very recent one, but there is not disclosed in it, any disposition to disregard the distinctions, which the legislature has constantly made, between the different classes of railroads, and which this court •has repeatedly noted and enforced, relating to the organization, taxation and other rights and duties of companies in the different classes. There is some discussion in the briefs of counsel as to the nature of the distinctions between different classes of railways, the manner of their construction and operation and the varying range of their service to the public. Such considerations are of value here, only so far as they may assist, in determining the classification which the legislature has actually made.

In this connection it is proper to note that if a municipal corporation, can by virtue of the section under examination here, compel an interurban railroad to light its tracks within the limits of the municipality, there would appear to be no reason why it could not also compel a street railway to do so, for, as we have shown, interurban and street railways are classed together. It is, of course, well known that electric cars both street and interurban are equipped with lights which give notice of their approach and passage along the street. Under such a condition the utility or advantage of additional lighting is not apparent. In many cities such railways traverse numbers of different streets and the power to shift the burden of lighting them from the city to the company, can only be obtained by legislative enactment.

The legislative power of the state is vested in the general assembly, and a municipal corporation has only such legislative power as is expressly granted or clearly implied. Bloom v. Xenia, 32 Ohio St., 461; Ravenna v. Penna. Co., 45 Ohio St., 118; Townsend v. Circleville, 78 Ohio St., 133.

A full consideration of the history of Section 1536-176, Revised Statutes, and of its language, and of the consistent course of legislation on the general subject involved in the inquiry, leads us to hold, that the legislature has not granted to cities and villages the power to compel interurban and street railway companies to light the streets of such villages and cities occupied by their tracks.

For these reasons we conclude that the circuit court erred in reversing the judgment of the court of common pleas and the judgment of the circuit court will be reversed and that of the common pleas court will be affirmed.

Judgment reversed.

Davis, C. J., Spear, Si-iauck, Price and Donahue, JJ., concur.


author: Price, J.

text:
    Umbenhower, by etc., et al. v. Labus, by etc., et al.

      Agreement of marriage — Accompanied by cohabitation — As husband and wife — And so reputed by community — Creates valid marriage — Child may inherit from father.

    An agreement of marriage in praesenti when made by parties competent to contract, accompanied and followed by cohabitation as husband and wife, they being so treated and reputed in the community and circle in which they move, establishes a valid marriage at common law, and a child of such marriage is legitimate and may inherit from the father.
    (No. 12242 —
    Decided January 16, 1912.)
    Error to the Circuit Court of Stark county.
    The case in the trial court involved the claim of Grace Helen Labus, a defendant in error, to a one-third interest in about two hundred acres of land situate in Stark county, Ohio.
    The land at one time belonged to Jacob Umbenhower, who, in December 1887, in consideration of love and affection, conveyed the same to his son Hiram and his wife Nancy, for their joint lives, and to their two children Willard P. and David J. Umbenhower for lives and to the heirs of their bodies respectively if any they have, and that if either of them do not, then the survivor of them during his life and to the heirs of his body.
    Hiram and his wife Nancy, and the son David, died several years since, leaving Willard P., the grandson, the only one mentioned in the deed, surviving. David died without issue, but Willard P. died leaving heirs of his body surviving, and the all important question of the case is, who constitute the heirs of the body of Willard P. Umbenhower ?
    He was married on the 12th day of March, 1889, to Lucy Lloyd, and there are two children by that marriage, to-wit: Hazel Umbenhower and Lee Umbenhower, the plaintiffs in error. Lucy Lloyd Umbenhower, wife of said Willard P., brought an action for divorce against her husband, and obtained a decree in the year 1900. She died, January 12, 1907, leaving said two children surviving her.
    Willard P., the husband, died in February, 1907.
    In May, 1907, in the name of Lee Umbenhower, an action for partition of the land was begun against his sister Plazel Umbenhower, in which it was and is alleged that each of them is seized in fee of the undivided one-half of said premises. When this action was filed, another claimant appeared in the person of Grace Helen Labus, then sometimes called Grace Helen Umbenhower, defendant in error, and she was made party defendant and she answered, claiming she was one of the heirs of Willard P. Umbenhower, and as such was seized in fee of the one-third interest in said lands, as a tenant in common with the two others named in the petition. This answer alleges that this Grace Jrlelen (Labus) Umbenhower was born October 3, 1902, and was and is the issue of Willard P. Umbenhower and his second wife Margaret. The existence and validity of this alleged second marriage is denied by the children of the first marriage, and they assert that if Grace Helen Labus Umbenhower is the offspring of Willard P., she is illegitimate and therefore not one of his heirs. The contest turns on her legal status in relation to Willard P.
    The court of common pleas found in her favor and ordered partition, one-third to- each of the parties claiming title. On appeal, the circuit court found and ordered likewise. Error is prosecuted here to reverse the findings and judgment so made and rendered.

      Mr. R. W. 'McCaughey; Mr. O. V. Wells and Messrs. Lynch & Day, for plaintiffs in error.
    Where the relations of the parties were illicit in the first instance, marriage will not be presumed from cohabitation and reputation, but clear proof of a subsequent actual marriage is necessary. State v. Bates, 77 Ohio St., 622.

      The mother of this child and principal witness, having admitted her relations with Umbenhower were improper and illicit in the beginning; that they began long before May 12, 1901, and had continued to bear the same character for several months after they were entered upon, from this fact a legal presumption arises that their relations continued to have the same character and did not become lawful in their character.
    We think, therefore, this case must address itself to the court as one requiring clear and convincing proof to sustain a decree for the defendant below. Davis’s Estate, 204 Pa. St., 602; Hunt’s Appeal, 86 Pa. St., 294; Clark v. Cassiday, 64 Ga., 662; Appeal of Ins. & Trust Co., 113 Pa. St., 204.
    On the proposition that the presumption of illicit relations continues: White v. White, 82 Cal., 427; Pike v. Pike, 112 Ill. App., 243; Marks v. Marks, 108 Ill. App., 371; Jones v. Jones, 45 Md., 144; Barnum v. Barnum, 42 Md., 251; In re Terry’s Estate, 58 Minn., 268; Cargile v. Wood, 63 Mo., 501; Caujolle v. Ferrie, 23 N. Y., 90; Wilcox v. Wilcox, 46 Hun, 32; Bates v. Bates, 27 N. Y. Supp., 872; Rutledge v. Tunno, 69 S. Car., 400; Henry v. Taylor, 16 S. Dak., 424; Eldred v. Eldred, 97 Va., 606.
    The proposition that the holding out and the subsequent life and conduct of these parties is immaterial unless the alleged marriage contract of May 12, 1901, is proven. Blackburn v. Crawford, 3 Wall., 175; Redgrave v. Redgrave, 38 Md., 94; Barnum v. Barnum, 42 Md., 252; Jackson v. Jackson, 82 Md., 17.

      Messrs. Shields & Pomerene for defendants in error.
    We concede the law to be that where the relations of the parties are in the first instance illicit, marriage will not be presumed from cohabitation and reputation alone, but that is not the case at bar. The evidence shows after the illicit relations were begun that there was a mutual pledge in verba de praesenti and that the entire course and conduct of the contracting parties confirmed the claim of an actual marriage between the two. It cannot be doubted that this marriage may be proven by direct evidence, as in this instance, by one of the contracting parties as a witness, as well as by circumstantial proof, such as the record shows at great length.
    Common law marriages are valid in Ohio. Carmichael v. State, 12 Ohio St., 553; Swartz v. State, 13 C. C., 62; Kniffen v. Schaffer, 12 C. C., 753; Johnson v. Dudley, 3 N. P., 196; Mieritz v. Insurance Co., 8 N. P., 424; Railroad Co. v. Cobb, 35 Ohio St., 94; Bruner v. Briggs, 39 Ohio St., 478; Ives v. McNicoll, 59 Ohio St., 402; Cargile v. Wood, 63 Mo., 512; Hynes v. McDermott, 91 N. Y., 458; 1 Bishop Marriage, Divorce & Separation, Chapters 31, 32, pp. 404-430; Schouler Domestic Relations, 38, 39; Wright v. Lore, 12 Ohio St., 619.
    Also we submit it is well settled practice that in a criminal case every doubt, both of law and of fact, is resolved in favor of the defendant, but when it comes to questions of the legitimization of unfortunate children, every intendment of the law and of fact is to be construed in their favor. For this purpose no doubt Section 4175, Revised Statutes, was enacted by the legislature. Our statute was intended for the benefit and protection of the innocent offspring and not for their punishment on account of the sins committed by their parents. Ives v. McNicoll, 59 Ohio St., 418; Wright v. Lore, 12 Ohio St., 619; Morris v. Williams, 39 Ohio St., 554; Elzas v. Elzas, 171 Ill., 632; Travers v. Reinhardt, 205 U. S., 423.
   Price, J.

Respecting the rights of the contesting parties, the common source of title is Willard P. Umbenhower. Lee and Plazel Umbenhower, without dispute, are his heirs, and the controversy turns upon the legitimacy of the child, Grace Helen.

Her mother Margaret was not married to Willard P. Umbenhower under a license and statutory ceremonials — under the forms provided by statute; but, it is asserted that they entered into a solemn contract of marriage to take effect in praesenti, which was accomplished and followed by cohabitation as man and wife with notice to the society in which they moved and by announcement on all proper occasions that they sustained that relation to each other.

This method of matrimony is called a common law marriage as distinguished from that prescribed by statute. A contract of marriage is essential in either case. The performance of a mere ceremony does not constitute a marriage. It must follow and be founded on contract. In one case the consummation of the contract may be celebrated and observed with or according to • statutory ceremony. In the other, the evidence of the marriage, in part at least, consists in the immediate and continued course of conduct of the parties in reference to each other in their domestic and social life. The contract of marriage need not be in writing in either, but may exist in parol. If it is ceremonially solemnized, the evidence of its consummation may be made a matter of record, if authorized by statute, and may be proved by eye witnesses, .admissions, cohabitation, etc., if the record evidence is not made, or if made, is lost or destroyed.

So it would seem that marriage rests on contract, and the state recognizes it as a civil contract, and it may be proved by competent parol proof and circumstances when the degree of proof is clear and satisfactory to the court or jury.

In this case the evidence to sustain the contract of marriage is within a small compass. The contracting parties were of lawful age and competent to contract. The first wife of Willard P. was divorced from him in the year 1900, and it may be inferred from statements in the record that part of her case for divorce was the husband’s friendship for Margaret, afterwards the mother of Grace Helen, defendant in error. Attention to the evidence of this mother will be pertinent at this point. She testified that in May after the divorce, “he (Willard P.) said to me: ‘Mag, you got the blame and we might as .well have the game — We’ll be married.’ It went on then till in May. * * •* Billy then said to me: 'The court won’t give us no license,’ and he took my hand and he said, T pledge myself as true and lawful husband to you the longest day I live,’ and I said to Billy, T pledge myself as true and lawful wife to you the longest day I live,’ and he slipped his mother’s wedding ring on my finger, and he kissed me, and he said, 'If we ever have any children, they will hold us together.’ ” This ring was put in evidence. She says this conversation occurred in his room in Park Row, Massillon. She was a laundress in the hotel and he was a barkeeper at the same place.

The terseness and precision of the above language almost staggers belief, for it would, on first-impression, seem inconceivable that persons of such walk in life would be capable of selecting and adopting such apt language to express their contract of marriage. The language resembles some we have seen in the law books on the subject. No one was present to corroborate or deny what the witness said, and if there were no circumstances of corroboration, a court might hesitate in believing the story to such degree as to determine important interests resting solely on its verity. But the same witness gives another incident that has some force. After the birth of this child on October 3, 1902, its name and date of birth were written by Willard P. i.n a Bible that was in the possession of one or both of the parties. Not long after the alleged contract, the woman gave up her position in the laundry, and after a change of rooming place, she devoted herself to Willard as his housekeeper, and they continuously cohabited as man and wife and held themselves out to the public as husband and wife. To neighbors with whom they associated, he introduced her as his wife, and she as often spoke of him to people they met, as her husband. After the birth of this child, Willard treated and spoke of it as his child, and to all outward appearances it was cared for by him as he would naturally care for his own offspring, and all this continued until his death.

Both lower courts found the above and some additional circumstances, to be the facts, and that they made proof of a common law marriage, and that Grace Helen was and is a legitimate heir of the parties to such marriage. While the narrative of the mother is not above suspicion and lacks conviction beyond doubt, we cannot say the lower court was clearly wrong in founding its judgment on the evidence adduced and found in the record. If true, there was a contract of marriage per verba de praesenti and the event was followed consistently by the usual indicia of the marriage relation.

Courts of Ohio and elsewhere have frequently considered cases where the rights of a party rested on so-called common law marriage. These cases are cited in the briefs and we will not repeat them here. The subject is not new in Ohio. As early as the case of Duncan v. Duncan, 10 Ohio St., 181, it was decided that “mutual promises to marry in the future, though made between parties competent to contract, and followed by cohabitation as husband and wife, is not, in itself, a valid marriage.” This was not the precise question in the present case, and the court distinctly states in the opinion that it was not passing on such question as we have. It was treating the case where the mutual promises were to marry in the future, and not the agreement to marry at once, followed by cohabitation as husband and wife.

The validit)^ of a marriage without complying with statutory requirements, was considered in Carmichael v. The State, 12 Ohio St., 553. There it appeared that the person who solemnized a marriage had no license or authority under the laws of the state. There was no other objection to the form of the marriage, and thereafter the parties cohabited as husband and wife. Held: “That it was to be inferred from the statement that the parties openly and mutually consented to a contract of present marriage, then to become husband and wife, and thereafter cohabited as such, and that this constituted a legal marriage, and the man, having then a wife living, might, on proof of such second marriage, be properly convicted of bigamy.”

In the same report, is Wright v. Lore, 619, which recognizes a similar doctrine.

So, also, is Lawrence Railroad Co. v. Cobb, 35 Ohio St., 94. The application of the statute of limitations to married women was one of the issues, it being urged that there was no proof of marriage. On page 97, Mcllvaine, J., says: “The issue as to the plaintiff’s marriage was important in the case only as it related to the defense under the statute of limitations. The testimony showed that the plaintiff and Mr. Cobb had been living and cohabiting as husband and wife for many years previous to the construction of the railroad, and had been regarded and treated in the neighborhood as husband and wife down to the date of the trial below. Upon such evidence the jury was warranted in finding the marriage, and the court did not err in its instructions on this point.”

Again, in Bruner v. Briggs, 39 Ohio St., 478, this court said, in the first paragraph of the syllabus: “In an action by one as surviving husband, against the heir of a deceased wife, to recover an estate by the curtesy, where the marriage is put in issue, a marriage in fact may be established by showing that they lived together and cohabited as husband and wife for a series of years, that they always recognized and treated each other as such, and that they were so treated and reputed in the community and circle in which they moved, although no record evidence was offered, nor the evidence of any witness who saw .them married was given. Such is competent and its sufficiency to establish the fact of marriage is for the court or jury trying the issue to determine.” See, also, Ives v. McNicholl, 59 Ohio St., 402.

The facts of each of the above cases are not as strong in support of the alleged marriage as in the case at bar, if credit be given to testimony. We cannot say that the lower court was palpably mistaken in giving such credit. We have brought the cases together in this opinion in order that the course of decision adopted by this court might stand for comparison. It is apparent from these and other cases before this court, the validity of a so-called common law marriage has never been repudiated, when established by sufficient competent evidence, but has been clearly recognize. Indeed the history of civilized society will show that in primitive times and all down the line of its advancement, marriage relations were created by mutual contract of competent parties, without ecclesiastical or statutory ceremony. While it is true legislatures from time to time have endeavored to prescribe methods and formalities of marriage, and proper records of the same, in the interest of decency and good morals, and to thus exalt and make sacred the married state, it cannot be forgotten that no law has made such methods and formalities exclusive. In this respect, as in many others, there is always a stratum of society that prefers to shun or disregard legal ceremonies and adopt a coarser and less conspicuous way of forming domestic ties. It is the innocent offspring of such citizens that the law would mercifully protect, and rather call them heirs than bastards.

We know that recognizing such informal marriages is fraught with danger, and that the rule is susceptible of great abuse. This view led Brinkerhoff, C. J., to exclaim, in Duncan v. Duncan, supra, 188, in reference to a contract to marry in the future: “It would be alien to the customs and-ideas of our people, and would shock their sense of propriety and decency. That it would tend to weaken the public estimate of the sanctity of the marriage relation; to obscure the certainty of the rights of inheritance; would be opening a door to false pretenses of marriage and to the imposition of supposititious heirs and would place honest, God-ordained matrimony and mere meretricious cohabitations too nearly on a level with each other.” This observation of the learned chief justice, and the like claim of counsel for plaintiff in error, are well calculated to incite great caution on the part of the courts in considering the evidence in such cases, for perjury and fraud practiced on the court or jury may change or defeat inheritance to valuable property, or otherwise affect important property interests and even the social relations.

However, the fear is not sufficient to defeat a marriage fairly established by competent evidence. True, perjury and fraud may taint such testimony and not be discovered by the most alert court or intelligent jury. The case may be won by fraud and perjury practiced. This has occurred in perhaps all classes of cases. We hope the instances are rare, but we have been told in legal history, that not only property rights, but human life and liberty, have suffered from the force of fraud and perjury.

We have taken a comprehensive view of this case, and have examined its facts closely, as should always be done in such an important issue, and find no error in the record.

Judgment affirmed.

Davis, C. J., Shauck and Johnson, JJ., concur. Donahue, J., not participating.