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Warren Circuit Court.

STREET RAILWAYS.

[Warren Circuit Court, October Term, 1901.]

Smith, Swing and Giffen, JJ.

EDWARD T. HOLLINGSWORTH V. CINCINNATI STREET RAailway Co.

1. NOT NEGLigence Per SE TO STAND ON RUNNING BOARD.

A passenger on a street car, acting in a prudent and careful manner, either while seated, standing or going to a seat, is not bound to look and listen to avoid dangers from passing or approaching cars. Therefore, when it appears that the plaintiff, in an action against a street railway company for personal injuries, while standing upon the running board of one of its cars in a proper manner and attempting to find a seat, was struck by a car running in an opposite direction on another track, he is not charged with contributory negligence as a matter of law, and it would be improper to direct a verdict on that ground.

2. QUESTION IS ONE FOR THE JURY.

Where a person was struck while standing upon the running board of a street car by a car passing on another track at a curve, the question whether the injury was the result of the construction of the tracks or the operation of the cars at that point, or whether the injury was caused by plaintiff's negli gence, is a question for the jury.

HEARD ON ERROR.

J. A. Runyan, for defendant in error, cited.

Plaintiff was not a passsenger in the legal sense, and was entitled to ordinary care only: Brooks v. Mt. Auburn Ry., 11 Dec. (Re.), 746 (29 B., 50).

One of the most important rules of law touching the rights and duties of a passenger is that he shall not permit his body to project beyond the range of the car: Sherman & Redf. on Negligence, 5th Ed. Sec. 519 and cases cited; Mann v. Traction Co., 34 Atl. Rep., 572 [175 Pa. St., 122]; Butler v. Railway Co., 21 Atl. Rep., 500 [139 Pa. St., 195]; Cummings v. Railway Co., 44 N. E. Rep,, 126 [166 Mass., 220].

Paxton & Warrington, for plaintiff in error.

Plaintiff in error, who was plaintiff below, in his petition alleges, in substance, that on September 1, 1899, at about 6 P. M. at a point on Walnut street south of and near Fifth street, in the city of Cincinnati, he stepped upon the running board of one of defendant's electric cars going north on Walnut street, intending to become a passenger thereon; that while standing on the running board and holding to the handhold on the the stanchion looking for a seat, and when about to step into said car to take a seat therein, the defendant, without notice or warning to plaintiff, negligently ran another car which it was then operating south on Walnut street, against plaintiff whereby he was thrown from said running board to the ground and injured. That defendant negligently caused, suffered and permitted its double tracks at said place to be constructed and maintained in dangerous proximity, and with insufficient space between said tracks, whereby, while plaintiff was standing on the running board as aforesaid, the car going south on Walnut street struck plaintiff as aforesaid; that by reason of the curve in its south bound track at said place, which curve caused the front part of said car to project towards the car on which plaintiff was standing, the defendant

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Hollingsworth v. Railway Co.

knew its car would strike plaintiff, of all which plaintiff was without knowledge, etc.

The answer denies generally all the substantial facts stated in the petition, and avers that the injuries complained of were occasioned by plaintiff's own negligence. The cause came on to be heard, and the plaintiff having introduced his evidence and rested, the defendant moved the court to instruct the jury to return a verdict for the defendant, which motion was sustained and a verdict rendered accordingly.

SWING, J.:

We think the court erred in directing the jury to return a verdict for the defendant. The evidence tended to show that the plaintiff stepped upon the running board of defendant's car, in a proper manner, and that while attempting in a proper manner to find a seat, was struck by defendant's car and injured. If plaintiff boarded defendant's car at a proper place and in a proper manner and, while engaged in a proper and careful way in finding a seat, was struck by a passing car of the defendant, we cannot see how the court could as a matter of law say that plaintiff was guilty of contributory negligence and therefore could

not recover.

The testimony taken in its most favorable light for the plaintiff certainly tended to show, that plaintiff was not guilty of negligence in boarding defendant's car, as to place, time and manner; it further tended to show that he was in a manner free from negligence endeavoring to find a seat. It further tended to show that he was struck by a car of the defendant as it came around the curve on Walnut and Fifth streets going south on Walnut street, and that at that point the two cars came so close together that a passenger standing on the running board or step of the north bound car on Walnut street, would be struck by the car rounding the curve from Fifth on to Walnut street. Mr. Johnson in his evidence said that Mr. Kroger, a passenger, observing the danger that the plaintiff was in, just before he was struck, attempted to leave his seat to rescue the plaintiff and placed his foot out, and that if he had not pulled it back, he would have been struck also. This tended to show that when a car came around the curve at Fifth and Walnut streets, into Walnut street, at the moment a car was passing up north on Walnut street, the cars came into very close proximity and closer than at other points along the line, and too close to permit one to remain in safety on the running board of the north bound car. It therefore became a matter to be left to the jury to determine whether the defendant was guilty of negligence in the construction of the defendant's road or in operating its cars, so that the two cars should be brought together at this particular point, or whether the plaintiff contributed to his injury by his own conduct under the evidence as the jury should find it to be.

There was a conflict in the evidence as to the movements of the defendant, but this was not left to the jury, and upon the evidence most favorable to him the court below said he could not recover.

There is a marked difference between this case and the case in Craighead v. Railway Co., 25 N. E. Rep., 387 [123 N. Y., 391-5], cited by the defendant in error. In that case the court based its decision on the fact that cars had been running on their tracks in the same way in which plaintiff had been injured for twenty years, and thousands of persons had ridden daily in the same way that the plaintiff was riding,

Warren Circuit Court.

and without one injury occurring. Therefore the court concluded that plaintiff must have been injured from his own misconduct, rather than from any negligence of the defendant company.

If it had been shown in this case that a passenger could stand upon the running board or step of a car passing upon the north bound track on Walnut street, and not be injured by a car coming around the curve at Fifth and Walnut' streets, on to the south bound track on Walnut street, that would go strongly to show that this plaintiff was not using proper care in going to his seat and was struck by the car through his own want of care; but no such showing was made. On the other hand, Johnson says that Kroger came near being hurt by putting his foot out in an attempt to rescue this plaintiff. That would certainly indicate that a passenger could not stand on this step when cars were passing this point.

It can not be that it is a general principle of law, that one who is a passenger on a car, acting in a prudent and careful manner, either while seated, standing, or going to a seat, is bound to look and listen to avoid dangers from other passing or approaching cars. It must be the duty of the company to look after the safety of its passengers from dangers produced by the acts of the company, as well as from other sources which may, by the highest degree of care, be avoided.

The plaintiff was bound to use ordinary care and prudence in becoming a passenger and while he was a passenger on defendant's cars, and the testimony certainly tended to show that he was so acting, while the defendant was bound to use the highest degree of care used by prudent persons engaged in a like business, for the protection of its passengers. Whether the injury was caused by the fault of the plaintiff or defendant was a question on the evidence to be left for the determination of the jury.

Judgment reversed and cause remanded for a new trial.
GIFFEN, J., dissents.

DEPOSITIONS.

[Hamilton Circuit Court, January Term, 1901.]
Swing, Giffen and Jelke, JJ.

*IN RE GEORGE HAFER, EX PARTE.

1. DEPOSITION of AdverSE PARTY UNDER SEC. 5243, Ræv. STAT.
Under Sec. 5243, Rev. Stat., a party may take the deposition of an adverse party,
notwithstanding the latter is within the jurisdiction of the court, and prob-
ably will be present at the trial of the case, and is not at the time sick or
unable to attend court. Chapman v. Lee, 45 Ohio St., and Smith v. Moore
Co., 9 Circ. Dec., 751 (19 R., €17), approved and followed.

2 NO DEPOSITION WHERE Witness REFUSES TO SIGN.

No legal deposition, as defined by Sec. 5262, Rev. Stat., requiring the deposition to be signed by the witness, has been taken where the witness, for the reason that the stenographer taking it inaccurately reported his declarations, refuses to sign the writing.

Common pleas decision by Spiegel, J., see Miller, ex parte, 11 Dec., 69 N. P., 142).

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In re Hafer.

3. CONFLICT As to What WAS SAID-QUESTION OF FACT.

Where there is a conflict between a stenographer and the witness whose deposition has been taken as to the writing containing the declarations of the witness, the question of what was said is one of fact for determination by the trial court, and neither the stenographer nor the witness are competent to determine what was said.

HEARD ON ERROR.

Harmon, Colston, Goldsmith & Hoadly, for Hafer.

Sidney G. Stricker, contra, cited:

Right to take depositions of adverse party: Secs. 5243, 5266, Rev. Stat.; Miller, Ex parte, 11 Dec., 69 [8 N. P., 142]; Chapman v. Lee, 45 O. S., 356, 357 [13 N. E. Rep., 736]; Roberts v. Briscoe, 44 O. S., 596 [10 N. E. Rep.. 61]; Shaw v. Installation Co., 9 Dec. (Re.), 809 [17 B., 274]; State ex rel. v. Cost, 10 Dec. (Re.), 619 [22 B., 250, 254]; In re Robinson, 9 Dec., 763 [7 N. P., 105]; Robinson v. McConnell, 10 Circ. Dec., 797; Meader v. Root, 5 Circ. Dec., 61 [11 R., 81]; Abels, In re, 12 Kan., 349; Buckingham v. Barnum, 30 Conn., 558; Ex parte Priest, 76 Mo., 229; Scott v. Wagon Works, 48 Ind., 75; 9 Am. & Eng. Ency. Law (2 ed.), 313.

Right to take second deposition: Cornet v. Williams, 87 U. S. (20 Wall.), 226; Beach v. Schmults, 20 Ill., 189; Watson v. Brewster, 1 Pa. St., 382; Martin v. Kaffrath, 16 S. & R. (Pa.), 124; Parker v. Chambers, 24 Ga., 524; Ex parte Priest, 76 Mo., 229.

GIFFEN, J.:

This was an application for the release of George Hafer from imprisonment, having been committed by the notary public for refusing to be sworn and give his deposition in a case pending in the superior court.

He had given his deposition in the same case, and after it was taken and transcribed by the stenographer he refused to sign it, for the reason that there were statements therein contained not given by him; and the stenographer and he being unable to agree upon that point, he was committed for refusing to sign the deposition; and, upon application to the court of common pleas, he was discharged. And thereupon this notice was served to again take his deposition. And that was resisted on the ground:

1. That there was no authority to take the deposition of an adverse party, George Hafer being a party to the suit. And,

2. That he had already given his deposition, and hence could not be required to again give his deposition; and, in connection with that question, that it was for him to determine what his deposition was; and, having objected to the transcription made by the stenographer, that he alone was the judge as to what he should sign as his deposition.

First, then, it is necessary to determine whether the deposition of a party can be taken by an adverse party.

The statute provides that interrogatories may be attached to a pleading, and that the party may be compelled to answer such interrogatories, if pertinent to the issues in the case.

And Sec. 5243, Rev. Stat., provides that "A party may be examined as if under cross-examination, at the instance of the adverse party, either orally or by deposition, as any other witness. But the party calling for

Hamilton Circuit Court.

such examination shall not be concluded thereby, but may rebut it by counter-testimony."

"Now, in the light of these statutory provisions, and especially this section, there would seem to be no room for doubt that a party may take the deposition of an adverse party. But there seems to have been doubt, in this state, because one of our circuit courts, in the Humphrey, In re, 7 Circ. Dec., 603 (14 R., 517), has held that a deposition of the adverse party can not be taken; while in the Smith v. Moore Co., 9 Circ. Dec., 751 (19 R., 617), it was held, by another circuit court, that his deposition could be taken. In the first case, however, there were peculiar circumstances upon which the court undoubtedly rested its decision, which were that it plainly appeared that the deposition was taken, not with any intention of using it upon a trial of the case in which it was taken, but merely for the purpose of discovering whether any testimony could be drawn out from the opposite side.

Now, in our Supreme Court reports there seems to be no case in which that question has been directly decided, and perhaps for the very reason that I have indicated. The statutes seem so plain that it would hardly be necessary for a construction of these statutes to determine that question.

But in Chapman v. Lee, 45 Ohio St., 356, page 357 [13 N. E. Rep., 736], the third proposition of the syllabus is as follows:

"Adequate means of obtaining discovery from parties to actions at law being afforded by our statutes, suits for discovery, as prosecuted in equity, before the adoption of the code, are practically obsolete in this state."

Now, at page 366 of this case, Judge Spear uses this language:

"All the aid which a suit for recovery would give is now given by by our code in the case at law itself. The party may attach to his pleading interrogatories which, so far as pertinent, the other party is bound to answer, and those answers may be used by either party as evidence. He may also take the deposition of the opposite party, or put him on the stand as a witness at the trial. The doctrine and rules concerning the subject matter of discovery established by courts of equity, are believed to be still in force and to control the same matters in the new procedure, but the bill of discovery, as a separate action, is practically obsolete in this state."

So that the deposition can not only be taken, but he may be placed upon the witness stand; thereby implying that although the party is within the jurisdiction of the court, and will probably be present at the trial of the case, and is not at the time sick or unable to attend, yet his deposition may be taken. And the error seems to arise from the fact that counsel proceed under the impression that a deposition can only be taken under such circumstances. The provision of the statute is that the deposition can only be used in those cases. But the deposition may be taken although at the time the party is within the jurisdiction of the court and might attend the trial if it were had at that time.

We, therefore, are inclined to follow not only the later decision of the circuit court, as reported in Smith v. Moore Co., supra, but as indicated in the Supreme Court reports, Chapman v. Lee, supra, and to hold that a party may take the deposition of the adverse party.

The next question urged is that a deposition had already been taken, and, consequently, there was no authority to again take the deposition of the same party.

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