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In re Hafer.

Our statute defines a deposition, in Sec. 5262, to be "a written declaration under oath, made upon notice to the adverse party," differing from an affidavit, by notice to the adverse party.

So, it is claimed that this deposition, having been written by the stenographer after being delivered by George Hafer on the witness stand, comes within this definition of the statute, and, consequently, a deposition had been taken.

But the statute also provides that the deposition shall be signed, and that upon a refusal to sign the deposition the party may be committed as in contempt of court. But it is not accurate, surely, to say that a deposition, because it has been written out by a stenographer, after having been delivered by the witness, is a written declaration of that witness unless it corresponds precisely with what he himself delivered while upon the witness stand.

Now, in this case there is a conflict as to what was so delivered by the witness, George Hafer, the party, claiming one thing and the stenographer another. And the one, perhaps, is as liable to be right as the other. Neither is infallible, and neither entitled to determine just what was said upon the witness stand. The witness himself may have forgotten what he did testify, and the stenographer may have inaccurately taken, or misunderstood, the declaration of the witness while upon the stand. But neither of them is entitled to determine what was really said.

As I understand this contention, counsel for Mr. Hafer insists that he alone shall determine what he said upon the witness stand, while, on the other hand, opposing counsel insist that the stenographer's report must be accepted by him, and he sign that.

I think that neither contention is correct, and that it becomes a question of fact, like any other fact to be determined by the trial court; and if the stenographer's report and the witness' recollection or wish in reference to the deposition do not coincide, that fact should be made to appear in some way upon the deposition itself, and the witness given such chance as would be necessary to explain his position in the matter, and then the whole deposition referred to the trial court and determined by it as a question of fact. Witnesses may then be called to determine what the witness did say upon the stand.

So that we hold that counsel are in error in contending that a deposition had already been taken, because the deposition had not been signed, and until it was signed or otherwise assented to as the declaration of the witness, it did not become his written declaration. And he neither assented to it orally, nor did he sign it, but refused to sign it, not for the reason that he had made any mistake and wanted to correct it, but for the reason that the report of the stenographer was directly opposed to what he in fact had testified to upon the witness stand.

The judgment, therefore, of the court of common pleas, in refusing to release George Hafer from imprisonment, should be by this court affirmed.

Licking Circuit Court.

RAILROAD-NEGLIGENCE EVIDENCE.

[Licking Circuit Court, March Term, 1898.]

Adams, Douglass and Smyser, JJ.

BALTIMORE & OHIO RAILRoad Co. v. MARY C. VAN HORN, ADMX.

1. Evidence as to Matters Within COMMON OBSERVATION.

In matters more within the common observation and experience of men, nonexperts may, in cases where it is not practicable to place before the jury all the primary facts upon which they are founded, state their opinions from such facts, where such opinions involve conclusions material to the subject of inquiry.

2. RULE APPLIED TO Operation of Railway TRAINS.

Witnesses having no special knowledge or experience in the running or management of railway trains, but having the ordinary, average familiarity with moving trains, are qualified to express an opinion, in an action for personal injuries where the speed of the train causing the injury is material, as to the rate at which it was moving.

3. Degree of Knowledge Affects Weight, not Competency OF EVIDENCE. An opinion as to the speed of a train involves the ordinary ideas of time, space and motion and is within the common observation and experience of men, and although the opinion of a man with large experience in riding on trains or in running them may be of greater weight than the ordinary witness, that fact only goes to the weight of the evidence and not to its competency.

4. PREVIOUS Narrow Escape at Railroad Crossing-Competency.

In an action for damages for death resulting from injuries received by decedent while crossing a railroad, evidence that the deceased had crossed the track with his team before is incompetent to show that on a former occasion he had a narrow escape from the same train and that he was habitually negligent; such evidence is not competent except for the purpose of showing his familiarity with the crossing.

5. SCINTILLa Rule Has not Been Departed from.

A motion to direct a verdict for defendant involves the "scintilla rule" in Ohio, from which the Supreme Court has not departed. Therefore, if there is any evidence, however slight, tending to prove each of the material allegations necessary for the plaintiff to recover, the court cannot properly direct the verdict for defendant.

6. MOTION TO DIRECT Verdict Properly Overruled.

Unless the proof was such, in an action for wrongful death, that no rational inference could be drawn therefrom, except negligence on the part of decedent contributing to his injury, the court properly overruled a motion to direct a verdict for defendent.

7. NO ABSOLUTE Rule as to STOPPING, LOOKING and ListENING.

The Supreme Court of Ohio has not adopted the absolute rule that the plaintiff, in an action for damages sustained at a railway crossing, must show that he stopped, looked, and listened in order to free himself from the charge of contributory negligence.

8. PERSON PARTIALLY Dear-Degree of Care.

The fact that a person injured at a railway crossing was partially deaf does not require him to use greater care to avoid injury than would otherwise be necessary, provided he was not conscious of his infirmity.

9. PERSON MAY PRESUME THAT RAILROAD COMPLIES WITH Law.

A party approaching a railroad crossing has a right to rely upon the presumption that the railroad company would manage its train according to the law and ordinances of the city and not carelessly nor negligently operate them.

Railroad Co. v. Van Horn.

Kibler & Kibler, for plaintiff in error.

S. M. Hunter, for defendant in error, cited:

Charge to jury-Court may use its own language: Bond v. State 23 Ohio St., 356.

Evidence as to speed of train: Railroad Co. v. Schultz, 43 Ohio St., 270, 281 [1 N. E. Rep., 324; 54 Am. Rep., 805]; Railroad Co. v. Steinberg, 17 Mich., 99, 104.

Defective hearing-Contributory negligence: Cleveland, C. & C. R. R. Co. v. Terry, 8 Ohio St., 570.

Interrogatories-Application of law as to pending actions: Railroad Co. v. Belt, 35 Ohio St., 479, 481; Lafferty v. Shinn, 38 Ohio St., 46; Arrowsmith v. Hammering, 39 Ohio St., 573, 576; Hartnett v. State, 42 Ohio St., 596; State v. Rabbitt, 46 Ohio St., 178, 180 [19 N. E. Rep., 437].

Excessive speed may be negligence: Chicago & N. W. R. R. Co., v. Dunbury, 39 Am. & Eng. R. R. Cos., 381, 392; 1 Thomp. Neg., 506.

Speed above city ordinance-Negligence may be inferred: Railroad Co. v. Ives, 144 U. S., 408 [12 S. Ct. Rep., 679]; Am. Dig. 1892; Bluedorn v. Railway Co., 18 S. W. Rep., 1103; Piper v. Railroad Co., 46 N. W. Rep., 165; Town v. Railroad Co., 8 N. Y. S., 137; Am. Dig., 1890, par., 3226; Dick v. Railroad Co., 38 Ohio St., 389, 394.

Speed may be considered on question of contributory negligence: Hart v. Devereux, 41 Ohio St., 565; Railroad Co. v. Schneider, 45 Ohio St., 678 [17 N. E. Rep., 321]; Baker v. Pendergast, 32 Ohio St., 494 [30 Am. Rep., 620]; Meek v. Railroad Co., 38 Ohio, 632; Railroad Co. v. Margrat, 51 Ohio St., 130, 138 [37 N. E. Rep., 11].

Contributory negligence: 107 Pa. St., 8.

Failure to ring bell or whistle-Crossing rights: Secs. 3336, 3337, Rev. Stat.; C., C. & C. Ry. v. Crawford, 24 Ohio St., 638, 639 [15 Am. Rep., 633]; Marietta & C. R. R. Co. v. Picksley, 24 Ohio St., 668; Railroad Co. v. Stead, 95 U. S., 162, 163; Grand Trunk Railway Co. v. Ives, 144 U. S., 418 [12 S. Ct. Rep., 679]; Cincinnati R. R. Co. v. Suell, 54 Ohio St., 197 [43 N. E. Rep., 207, 32 L. R. A., 276]; Weiser v. Railroad Co., 6 Circ. Dec., 215 (10 R., 14); Piper v. Railroad Co., 77 Wis., 247 [46 N. W. Rep., 165]; Patterson v. Railway Co., 5 Circ. Dec., 665 (12 R., 279); Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St., 638, 639; Marietta & C. R. R. Co. v. Picksley, 24 Ohio St., 668; Railroad Co. v. Stead, 95 U. S.. 162.

Presumption: T. & P. R. R. Co. v. Gentry, 163 U. S., 353; 107 Pa. St., 8.

HEARD ON ERROR.

ADAMS, J.:

The defendant in error, Mary C. Van Horn, as administratrix of Noah Van Horn, recovered a judgment in the court of common pleas for damages resulting from the death of Noah Van Horn, who was killed by a Baltimore & Ohio Railroad train at what is known as the Church street crossing on June 11, 1891.

The petition, after setting out various formal allegations and as to the corporate capacity of the railway company, sets out that the defendant carelessly and negligently ran and operated their train at a high and dangerous rate of speed; that they failed to sound the whistle or ring

Licking Circuit Court.

the bell, or to give the statutory signals for the crossing; that by reason of these negligent acts on the part of the defendant railway company, and while the deceased, Van Horn, was in the exercise of due care, he was killed; that the damage resulting to his widow and children from his death was the result of the negligent acts of the defendant railway company.

The answer, after admitting the formal allegations of the petition, is a general denial. That is, the railway company denies all acts of negligence on its part, and alleges as a further defense that Van Horn was guilty of negligence himself in driving upon the track at the time, which negligence contributed to his injury.

The allegations of contributory negligence were put in issue by the reply, and on these issues the case was tried to a jury, resulting in a verdict in favor of the plaintiff below. The railway company is here prosecuting error, with a bill of exceptions setting forth all of the evidence and the charge of the court.

There are numerous assignments of error, and numerous exceptions in this record, and I will confine myself entirely to those insisted upon by counsel for plaintiff in error, and to those that he relied upon in his argument.

In the course of the trial, various parties who saw this train as it was approaching the place of the collision, were allowed to give their opinions as to the rate of speed at which the train was moving. Some of these witnesses had no special knowledge or experience in the running or management of railway trains. They were the ordinary, average person, who had the ordinary, average familiarity with moving trains; and it is said that these opinions were not admissible on the ground that these witnesses were not qualified to express an opinion as to the rate at which the train was moving.

It is said in Railroad Company v. Schultz, 43 Ohio St., 270 [1 N. E. Rep., 324; 54 Am. Rep., 805], in the opinion of the court on page 282:

"A few general propositions are submitted, which, it is believed, fairly reflect the current of authority on the subject of the admissibility of the opinions of witnesses as evidence.”

Paragraph four:

"In matters more within the common observation and experience of men, non-experts may, in cases where it is not practicable to place before the jury all the primary facts upon which they were founded state their opinions from such facts, where such opinions involve con clusions material to the subject of inquiry."

There is no controversy but that it was material to this inquiry of whether this railway train was running at a high rate of speed or at a low rate, or within the limit prescribed by ordinance of the city of Newark. As is said on the argument here, and we think well said, the opinion as to the speed of a train simply involves the ordinary ideas of time, and space, and motion, and it is a common occurrence for witnesses to testify as to the rate at which a man is moving, or at which a horse is moving, and a moving train is simply one of another class of moving objects, and it is a matter within the common observation and experience of men. It is true that a man with large experience in riding on trains, or in running trains, and who has had daily opportunities and daily occasions to observe the speed of trains, that his evidence might be of greater weight than that of the

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Railroad Co. Van Horn.

ordinary witness, but that goes only to the weight of the testimony, and not to its competency. So we think that there was no error of the court in admitting these opinions as to speed.

Again, there is an exception, on page 203 of the bill of exceptions, to the exclusion of certain testimony offered by the defendant railway company.

The witness, Mrs. Oden, was asked: "I will ask you whether you saw Mr. Van Horn crossing that crossing on any other occasion when a train was approaching?

"Objected to by counsel for plaintiff.

"The Court: Except for the purpose of showing his familiarity with the crossing. Objection sustained.

"To which ruling of the court, the defendant by its counsel at the time excepted."

Counsel for defendant then states what he expects to prove: "I am offering it to show that he had some narrow escapes in front of trains. I offer to show that Mr. Van Horn previous to this time and not a great while before on one or two different occasions had crossed this crossing in front of same passenger train, driving the same team of Mr. Lisey's; that it was a spirited team, and that he had difficulty in managing it; that he had been seen by the witness crossing in front of this train; that on one occasion he passed in front of this train and had a narrow escape."

It is true that if it was offered to show that Van Horn had repeatedly crossed the railway at that point, that would be competent to show his familiarity with the crossing. As is said in Brewing Co. v. Bauer, 50 Ohio St., 560 [35 N. E. Rep., 55; 40 A. S. Rep., 686], it is competent to show his familiarity with the crossing, and if that involved the idea of other acts of negligence on his part, it would be the duty of the trial judge to caution the jury that that evidence was competent only for the purpose of showing familiarity with the crossing, and not to show other acts of negligence. But, the offer in this case was not for the purpose of showing his familiarity with the crossing-the fact that he knew that there was a railroad crossing there, and knew the situation and surroundings; but it was offered for the purpose of showing that, on some other occasion, that he had had a narrow escape before the train; in substance that Van Horn was habitually negligent, or that at other times and at that place he had been guilty of negligence. We think that that evidence, offered for that purpose, is clearly incompetent. It brings before the jury an entirely collateral issue. If the railway company may show that Van Horn was negligent at another time, the plaintiff could meet that proof by evidence that he was not negligent at that other time, and there would be no end to the controversy before the jury; because, if the issue of negligence on the part of Van Horn at other times is competent, then it would be equally competent for the plaintiff at other times to show that the railway company habitually ran its train in violation of the laws of the city, and negligently.

The issue was, first: Was the defendant railway company negligent in the particulars charged in the petition; and second: Was the defendant guilty of contributory negligence; and as to the negligence of the railway company; and as to the contributory negligence of Van Horn at a time and place named in the pleadings in this case. We think there was no error as to that exception.

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