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Lucas Circuit Court.

authorized by said common council), and that whenever directed by said common council, after notice to be served in either of the modes specified above in Clause A hereof, he will at once proceed to make the repairs as thus directed."

And Sec. C provides for the withholding of this ten per cent. for five years after the completion of the pavement, and the expenditure of so much of it as may be necessary for the making of these repairs if the contractor fails to make them, and it also provides that if he does his whole duty and it is not necessary to use this fund, he shall receive four per cent. upon it while it is withheld by the city.

Now we are of opinion that a fair construction of the contract would not require the contractor to do anything more in the way of repair on the street, or the keeping of it in repair, than to correct any defects of construction or materials; that is to say, make good any work that he may have done under his contract; that if, for instance, there were some such movement of the earth's crust, as might result from an earthquake, which should break this street all up, we do not think any court in christendom would hold that under the provisions of this contract the contractor would be required to make the street good.

There is another line of decisions holding the contrary view, and these decisions are found in Missouri, New Jersey, Illinois and Iowa, and the reasoning in these cases is, according to our view, more consistent, not only with the interests of the parties along the streets, who pay for these streets, but more consistent with the interests of the city. Too many restrictions and safeguards cannot be provided to require contractors to fulfil in a reasonable and honest manner their engagements in the making of these public improvements, and according to our view these stipulations as to the ten per cent. stand upon that ground; it is as if the contractor had been required to give a bond that he would keep the street in good condition for five years after having guaranteed that it would last five years. I read a paragraph from Barber Asphalt Paving Co. v. Ullman, 38 S. W. Rep. 458, 464, [137 Mo. 543], which is a Missouri case :

"The agreements of the plaintiff, the asphalt company, in regard to maintaining the street in repair for five years, iree of cost to the city, apply only to the pavement constructed under these specifications.' If other repairs become necessary, on account of the construction of sewers, laying of pipes or other disturbances of the asphaltum street surface, under permits of the city, those repairs are to be paid for by the city, not by the adjacent property owners, at a price not to exceed the original cost per yard, according to the contract. The validity of those provisions as to the city is a topic regarding which we shall more fully state our position in the next paragraph of this opinion. It is enough at the moment to say that the stipulations as to such repairs on account of the city, at prices to be paid in future, do not appear to impose on the property owners any charge for such repairs as part of the primary cost of the asphaltum street. The guaranty of the pavement for five years, as laid by the plaintiff, involves no extra charge against the adjoining property, further than would be justly payable for a lasting pavement. The term for keeping the agreed work in repair free of cost is no longer than the reasonable period such a work should last if properly done at the outset."

McGlynn v. Toledo.

And that is so here. According to the evidence, if this pavement were laid in a reasonable manner, as provided for in the contract, it would last five years.

"It certainly is proper for the city to require of the contractor for such improvements a sound and durable piece of finished work. The agreement to maintain the work free of cost for five years is, so far as this record shows, nothing more than a guaranty that the work shall be of that character.

"The learned dissenting members of the court consider that the contract imposes upon the taxable property some part of the after repairs, payable properly by the city. They have quoted some part of the contract to support their views. The passages from which the quotations are taken appear at large in the statement accompanying this opinion, as well as considerable context, which, also, should not be lost sight of. The paramount issue is upon the construction of the contract taken as a whole. Does it mean to provide that the paving company shall keep the entire street in repair for five years, or does it mean to provide that the company shall simply maintain, in good order, or that period, the street as plaintiff agreed it should be made? We think the latter is the true meaning. The city had the right to determine whether the thoroughfare should be improved with macadam, gravel, asphaltum, granite or other material. It had the right to put down a pavement good enough to last at least five years, and to charge its cost against the adjacent property. Now, what difference is there in principle, between a municipal agreement that merely calls for the construction of such a substantial street, and a municipal agreement which adds to such a call terms requiring the contractor to make good, during five years, his contract to furnish the sort of pavement he proposes to supply? The proper laying of pavements of the sort here in view is a matter of skill, which few but experts can fathom. An agreement to keep such a pavement good for five years, as contracted to be laid, seems to us a far more practical and efficient way of clinching the agreement for a sound article than any amount of stipulations to govern the mere construction of the street at the outset. Such a guaranty as it is aptly termed in the contract, is a prudent and business-like mode of securing what the city had a right to demand in respect of the quality of work desired. Such an agreement does not, of itself, necessarily imply an unlawful increase of the first cost of a well constructed street Such a street is what the contract before us is designed to secure. The guaranty is entirely different in principle from an agreement to keep the whole street in repair for a term of years, irrespective of the causes which might necessitate repairs."

And, following the decisions of the courts of Missouri, New Jersey, Illinois and Iowa upon this subject, we hold that there is nothing in this stipulation as to the withholding of the ten per cent., nothing in the transaction, that renders this assessment invalid.

It is also urged that there is a substantial defect in this work, in this, that all of that part of the street where the sidewalks should be laid was not brought up to grade, and much authority is cited in support of the contention that under this petition and contract, the contractor should have been required to build the necessary retaining walls and fill in so as to bring the street for its full width to the line of the lots, up to grade. Without stopping to consider whether or not this was required under the contract, we have simply to say that in our opinion

Lucas Circuit Court.

this matter cannot be taken advantage of in an attack upon the assessment, unless fraud is alleged; we understand that it has been so held by this court and other courts over and over again. In Stone v. Viele, 38 Ohio St., 314, to which we have been referred, it was held that where there was a substantial defect, that would render the assessment invalid. But when that case was before the court and when the improvement was petitioned for and constructed, the statute upon the subject was very different from the statute under which this improvement was made.

Judge Okey, in delivering the opinion, on page 317, says this:

"Section 550 of the municipal code of 1869, as amended in the revision (Rev. Stat., Sec. 2289), provides that in an action by the city (Rev. Stat., Secs. 2286, 2294, 2303), to enforce an assessment, a substantial defect in the construction of the improvement and shall be a complete defense.'"

After that was said section 2289, was amended, and in the amendment these words "a substantial defect in the construction of the improvement shall be a complete defense" are omitted.

Our attention is also called to a more recent decision of the Supreme Court, from which it is claimed that there is an implication that the right to attack the assessment upon this ground still exists, but we think the inference to be drawn from this amendment following this decision is so clear and unmistakable as to leave no doubt of the legislative intent, that an assessment should not be attacked or defended against upon that ground. I might say, however, that we are not satisfied that the contract was not fairly and fully performed.

I have indicated the only parts of the assessments that we think should be omitted from the new assessment and the decree will be entered in accordance with the views expressed.

STREET RAILWAY -Negligence.

[Lucas Circuit Court, November 5, 1900.]
Haynes, Hull and Parker, JJ.

TOLEDO ELECTRIC STREET RAILWAY Co. v. John Westenhuber.

1. STREET RAILWAY CROSSINGS-EQUAL RIGHTS.

A company operating a street railway and the driver of a team of horses have equal rights at a street crossing, and the latter has the right, being at the crossing first, to go over the crossing ahead of the car, notwithstanding its speed must be retarded to prevent a collision.

2 DUTY OF PERSON ATTEMPTING TO Drive Across.

It is the duty of the driver of a loaded wagon about to cross street car tracks at a crossing, upon observing the rapid approach of a street car, to take into consideration the fact that it can neither turn out, nor stop instantly, but if, upon such consideration, he enters upon the track when the car is so far away and approaching at such speed that, by the exercise of reasonable diligence, it can be stopped, he is not thereby guilty of negligence.

8. RULES APPLIED-NEGLIGENCE OF RAILWAY COMPANY.

Where it appears that the driver of a loaded wagon attempted to cross a street railroad track when an approaching car was about two hundred feet distant, and that he could be seen by the motorman, and it also appears that the latter did not immediately slacken the speed of the car, but waited until very near the crossing before attempting to do so, and it further appears that, under such circumstances, the wagon moved so far across the track that only a rear wheel was caught by the car, it is obvious that the car might have been stopped by the exercise of reasonable diligence, and for injuries resulting from a failure to stop it the street railway company is liable.

Railway Co. v. Westenhuber.

4. OPINIONS As to Speed of Car CompETENT.

Where the speed of a street car causing an injury is called in question, the opinions of persons observing the movement of the car are competent, as relating to a matter of common knowledge, and especially where such persons appear to have made observations of the movements of similar cars.

5. PLEADING-Recovery for Medical ATTENDANCE.

Where the petition in an action for personal injuries sets forth that plaintiff has been put to great expense for nursing, medicines and medical attendance in connection with all other damages by him sustained, but does not set forth the precise amount thereof separately, evidence of the value of medical services is admissible, in the absence of a motion to make such petition more definite and certain in this particular.

HEARD ON Error.

Smith & Baber, for plaintiff in error.

Hurd, Brumback & Thatcher, for defendant in error.

Parker, J.:

This is a proceeding brought to reverse a judgment obtained by Westenhuber against the street railway company in an action for personal injuries.

It appears from the evidence that the plaintiff below was riding upon a heavy beer wagon, driving the team, and was crossing the track of the defendant company on Huron street at Walnut street. A car approaching from the north came in contact with a hind wheel of the wagon on which he was riding, knocked the wagon over to the side of the street, and unloaded the beer kegs, both full and empty, very suddenly upon the street, and threw the plaintiff to the ground and injured him. The jury returned a verdict in his favor for $1,000, upon which judgment was entered.

For the reasons stated by Judge Haynes this morning, I will not take the time to discuss this case very fully, but I will do so briefly. The driver with his team was going towards Summit street-towards the river. That would be in a southeasterly direction. It appears that about the time he came upon Huron street the car was from one hundred and fifty to two hundred feet away, approaching the crossing; that when he came so far upon the street that he could see the car coming, that brought his horses very near to the street railroad track; that he did not stop, but continued on his way. The car did not stop, but continued on its way. When the car came near to him he endeavored to hurry up his horses, by slapping them with the lines, but the car, as I have said, caught a hind wheel of his wagon.

There is testimony tending to show, and upon it the jury must have found, that the motorman did not undertake to slack the speed of the car or stop it in time to prevent this collision. That was a disputed point in the case, but we think the evidence tends very fairly to show that he did not exert himself to stop his car until he approached very near to the crossing, and that then, when he came to try to stop his car, it was too late, he was too near to the wagon, and although he did his best then, perhaps, the car caught a hind wheel of the wagon.

From the evidence the jury may have found that the motorman did not exercise reasonable care, did not make a reasonable effort in due time to stop his car or slack its speed to avoid the collision. The evidence tended to show that he did not turn off the power and apply the brakes when nearing the crossing, and that if he had done so when plaintiff was

Lucas Circuit Court.

going upon the crossing in full view of the motorman, while the car was one hundred to two hundred feet distant, the collision might have been averted. So we think that the negligence of the company is fairly made out by the evidence.

It is contended, however, that the driver was guilty of contributory negligence in entering upon the tracks, because before his horses came upon the track he distinctly saw the car approaching, not more than two hundred feet away; that he saw i、 approaching at a rate of speed that would run him down, unless the speed of the team should be very much accelerated or the speed of the car should be retarded; yet he entered upon the track to cross over, and it is said that in doing so he was negligent.

To attempt to drive across a track ahead of a street car when the car is so far away that, by the exercise of reasonable care on the part of the operators, it might be stopped before reaching the place of crossing, is not negligence, in our opinion. The rights of the street car company and of the driver of the team being equal at the crossing, he had a right to go over the crossing ahead of the car, notwithstanding the fact that his doing so would require that the speed of the car must be retarded to prevent a collision. The one first at the crossing had the right to precede the other in going over the same. It is plain, the driver of the team must take into consideration the fact that the street car cannot turn out, it must remain upon the rails, and he must take into consideration the fact that it cannot stop instantly, that if it is going at a high rate of speed it may require considerable distance for it to stop; but taking all these things into consideration, if he enters upon the track when the car is so far away as that it may, by the exercise of reasonable diligence on the part of the operator, be stopped, he is not in our opinion guilty of negligence in thus entering upon the track.

If the driver could go upon and move more than half way over the crossing before the arrival of the car, when the car was going at full speed, obviously the car might have been controlled by the motorman, so that the driver could have passed entirely over without a collision. The driver was not bound to wait for the car to pass first, and was not guilty of negligence in going upon the track ahead of the car under such conditions.

It is claimed that the court erred in permitting unqalified persons to testify as experts to the number of miles per hour the car was moving. This testimony was given by persons who observed the movement of the car on this particular occasion, and they seem to have been persons who had made observations of the movements of similar cars and of horses. We are not prepared to say that persons may not testify to their opinions or judgment of the speed of cars on certain occasions, when they observe them. They may testify to the speed of a horse or the speed of a man running, especially where it is shown that they have made such observations upon other occasions, and are better able than persons who have not made such observations to make a fair estimate of the rate of speed. We think this is a matter of common observation that admits of this method of proof.

It is said that the court erred in admitting evidence as to the value of medical services without pleading on the subject. The petition sets forth that:

"By reason of the injuries so sustained by plaintiff, he was for long time confined to his bed and kept from his work, has lost a good

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