Bader v. River Road Co.

said company should become incorporated as therein provided, and whereby the said company could be compelled to keep said road in repair, were an essential element in the provisions for the surrender of said road, that said provisions as to the incorporation and the obligations to repair which would thereby be enforceable against said company, have failed, and that the said contract with said provisions eliminated is in contravention of law."

In answer to that, it may be said that the contract does not require that the bondholders be incorporated. The contract made between the county commissioners and those representing the road, who were the bondholders, contained a provision that they may become incorporated according to the act of 1852, 50 O. L., 274, so far as it relates to plank road and turnpike companies.

It is argued, on the other hand, that the road, while it may not, under these acts, have become a corporation de jure, is a corporation de facto. And there is much force in this contention. For, in deciding the case of the Lower River Road Co. v. Riverside (Vil.), 25 Ohio St., 658, the Supreme Court left that question in doubt, but seem to recognize the fact that the Lower River Road Company was a corporation, and, parenthetically announced that it might be questionable whether, under this species of legislation, they could have become a corporation.

Inasmuch as the contract does not require that they become incorporated, we do not deem it essential, in this case, to determine whether or not, they are a corporation, even de facto.

That Carthage road act, which is made part, in some respects, of the act of March 22, 1850, pertaining to the Lower River Road, has this provision :

"That the said commissioners shall employ or appoint such agents or persons to make repairs of said road and keep the gates and collect tolls at such salaries and on such terms as shall be deemed advisable by said commissioners."

Now, in the case referred to, Lower River Road Co. v. Riverside (Vil.), supra, on page 658, the court has held that the corporation, if it be one, is the agent or trustee of the county commissioners. And, being the agent or trusteee of the county commissioners, they stand in no different relation than that provided before, in the Carthage road act, that the commissioners shall select such agent as it may deem advisable.

The contract, in this case, was made, as I said, with the bondholders. The corporation was formed, if at all, subsequent to the execution of the contract. So that the corporation, or the association representing the bondholders, whichever you may choose to call them, is acting simply as the agent or trustee of the county commissioners, as they were already authorized to do under the Carthage road act and the act of 1850, each of which is admitted to be constitutional. And the act of 1857, may be open to the objection that it pertains to a general subject matter, and, therefore, does not have uniform operation throughout the state.

It may be said, however, in passing, that all of this class to legislation, up to the time of the decision of Hixson v. Burson, 54 Ohio S., 470 [43 N. E. Rep., 1000], had been regarded as constitutional, and had been so held in the case of the State ex rel. Hibbs v. Comrs., 35 Ohio St., 458, and it was only after the decision of Hixson v. Burson that this case was overruled.

Hamilton Circuit Court.

So that it might be said that this class of legislation being recognized, at that time, by our Supreme Court as constitutional, an attempt to form a corporation under that law, at that time, should now, rights having vested, be recognized as at least a corporation de facto. But as it will be unnecessary to decide the question in this case, we leave it, as did Judge McIlvaine in Lower River Road Co. v. Riverside (Vil.), supra. There has been recently another principle announced, in the case of Cincinnati v. Taft, 63 Ohio St., 141, the syllabus of which is as follows:

"An act of the general assembly to authorize a municipality o issue bonds for the construction of a public improvement having been adjudged by this court to be constitutionally valid, and the bonds having been thereafter sold and the improvement made, the court will follow the former decision as to the validity of the supplementary acts relating to the renewal or extension of such bonds."

If we are right in our statement, therefore, that the commissioners were authorized, under the constitutional act of 1850, to employ such agents as they might deem proper, to operate and control the road, that this act of 1857, which seeks, in a limited sense, merely to do the same thing, is supplementary, or enabling, in its operation, to the original act of 1850. It does not seek to do more than that authorized in Carthage road act, but, rather, attempts to limit it to a certain class of agents, rather than to agents generally.

We think, therefore, that, while the case does not come directly under Cincinnati v. Taft, supra, the same principle applies and that the act of 1857, so far as it enables the county commissioners merely to do that which they were authorized to do under the constitutional act, would confer that power, although the act of 1857, standing alone and independent, would be declared unconstitutional, under the decision in Hixson v. Burson, supra.

The next objection is that the transfer of a portion of the roadway by the extension of the Lower River Road Company to the Cincinnati & Indiana Railroad Company was in violation of the contract of surrender.

The railroad company and the turnpike company became involved in a dispute as to the line dividing their properties; and some of the testimony tends to show that the Lower River Road Company surrendered a strip of ground the entire length of the pike, two feet in width, to the railroad company, in consideration whereof the railroad company surrendered to the turnpike company $4,600 of the bonds issued by the county commissioners, which were payable from the collection of tolls. Mr. Moore, whose testimony is relied upon to this effect, testified that the canal bed, which constituted the right of way of the railroad company, was sixty-three feet in width; and this contract between the railroad company and the turnpike company provides that the line shall be thirty-one and a half feet from the middle line of the old canal; which would be precisely half of that which Mr. Moore says was the actual width of the canal, including the berme bank, tow path and the bed thereof. So that his testimony is not, by any means, conclusive as showing that there was an actual surrender of two feet of ground to the railroad company. It is true that this contract does not vest any property right in the bondholders and they would be unauthorized to deal with the land constituting the turnpike as their property. But we feel it may be fairly stated that it was not a surrender of any ground but was an

Bader v. River Road Co.

adjustment of the boundary line that was a very beneficial transaction; and that if the county commissioners claim the benefit of the surrender of the bonds, they would thereby be compelled to accept the other terms of the contract. And, of course, we shall hold that, having dealt with this property as owner, and representing the county commissioners as agents, and whatever rights they acquired in the bonds would inure to the county commissioners, and such bonds as were received in consideration of the adjustment of this boundary line should be considered as canceled. And although an attempt was made to reissue $1,000 of these bonds subsequently to their surrender to the turnpike company, it would have been unavailing.

Third, that the action of the extension of the Lower River Road Company in making a lease to the village of Riverside of so much of the road as was within the corporate limits of said village, was in violation of the contract of surrender.

This was the contract entered into between the village of Riverside and the company whereby they were to pay an annual rental of $600, and in consideration of that payment, the residents of the village were exempt from paying toll, and the turnpike company was enjoined from collecting toll upon any part of the turnpike within the village, and the $600 was to be applied to the improvement of any portion of the turnpike road.

Were it not for the fact that it might be held that this corporation was not a corporation in fact, Sec. 3492, Rev. Stat., would apply, and which would fully authorize the company to enter into such a contract with the village of Riverside. But, if not a corporation, perhaps that statute would not apply to this case. But we think that in doing as they did they made a very beneficial contract, and it amounted simply to the collection of toll for that part of the road, to the extent of $600 per annum, in a way different from the ordinary way of collecting tolls, and it was not in violation of the contract entered into between the commissioners and the bondholders.

The other grounds may be embraced in the one head, that the bondholders have not performed the contract, in that they have not kept the road in good repair.

We do not find, in this contract, or in the lease upon which it was founded, that any high standard is laid down for the keeping of this road in repair; and that the terms of the contract merely provide that the road shall be kept in reasonably good repair. And, while we will not undertake to analyze the testimony, which is voluminous, we think that, under the circumstances, the bondholders being limited by the amount of the toll, the object of the contract being not only to keep the road in repair and to serve the public in that regard, but to pay the bonds, or at least, the interest thereon, that the turnpike company has kept the road in such reasonable repair as could be expected under the circumstances of the case. The tolls received perhaps averaged $2,200 to $2,300, perhaps $2,400 to $2,500; and the greater part of this has been expended upon the repair of the road, or in paying the salary of the secretary and treasurer. And upon this payment much of the controversy depends. Of course, it was not intended, by the terms of this contract, that the bondholders, or any of the officers of this company to be afterwards formed, should acquire any considerable salary for the management of the road. But the repair of the road could not have been intelligently done without some direction from the officers of the company.

Hamilton Circuit Court.

The mere placing of the metal upon the road and the ordinary manual labor expended in doing so, was not what would ordinarily result in the repair and maintenance of a good, fair road.

We think, therefore, that at least part of the salary allowed for a secretary and treasurer, when his duties also required him to superintend the repair of the road, was properly expended as a part of the repairs of the road. And the receipts and expenditures could not be accounted for honestly and faithfully without some supervision from one of the officers of the road. The salary allowed for this purpose was $600 a year. We think that, in view of all the circumstances of the case, this was extravagant; it would not be under ordinary circumstances, but under those in this case, we think that one-half of that salary should be approved, and the other half be applied to the payment of the interest upon the bonds. As to the $4,600 of bonds surrendered to the turnpike company by the railroad company, we think that they should be cancelled as of the date of the transaction between the turnpike company and the railroad company.

We think that the costs should be equally divided between the county commissioners and turnpike company.

VERDICTS-MASTER AND SERVANT.

[Warren Circuit Court, January Term, 1900.]
Smith, Swing and Giffen, JJ.

C. & M. V. Ry. Co. v. Emerson H. THOMPSON.

1. Rule as to Reversal on Weight of Evidence.

A verdict not manifestly against the weight of evidence will not be reversed, notwithstanding there may be considerable question as to whether it is right,

2. PROOF OF CHARACTER OF EMPLOYE.

In an action against a railway company for personal injuries, in which the plaintiff claims that he was injured by the reckless and negligent management of an engine which he was attempting to couple to cars, it is competent to prove that the general reputation of the fireman, who was operating the engine, was that "he was a rough man with an engine," for the purpose of showing that the defendant had knowledge of such incompetency. 8. PERMITTING WITNESSES TO BE RECalled.

Permitting a witness to be recalled and to again testify is a matter within the discretion of the trial judge, which, if not abused to the prejudice of the defendant, is no ground for reversal.

4. RELATION OF SERVANTS-QUESTION for Jury.

Whether a fireman and brakeman are fellow servants is a question for the jury to determine, evidence having been offered of their relative positions, and the court properly refused to give a special charge assuming that they were fellow servants, and therefore, that no recovery could be had by plaintiff.

5. Rule as tO ASSUMPTION OF RISKS.

The business of coupling cars is a hazardous one, the ordinary risks of which a brakeman assumes; but if a brakeman is injured by the gross negligence of an incompetent employe of the company, who was known by it to be incompetent, he cannot be defeated in an action for personal injuries simply because he voluntarily put himself into or remained in a known place of danger.

HEARD ON Error.

SMITH, J.

Railway Co. v. Thompson.

We notice very briefly the assignments of error in the petition in error of the railway company.

First. We are of the opinion that the verdict of the jury was not so manifestly against the weight of the evidence as to justify us in reversing the judgment on that ground-though we might be disposed to believe that there is considerable question as to whether the verdict was right.

Second. It is urged that the trial court erred in permitting the plaintiff to testify that the general reputation of the fireman Detterman, on defendant's road was, that he was a rough man with an engine. The claim of the plaintiff below being that he was injured by the reckless and negligent management of an engine on defendant's road, which he, as a brakeman, was attempting to couple to some cars, and that Detterman, the fireman, was incompetent, and that the officers of the company had been notified or knew of this, and had promised plaintiff that he should not operate the engine. This was all denied by the defendant.

We think the admission of this evidence was proper and justified by the authorities. Thus, in 1 Green). Evi. (16 ed.) Sec. 14, page, it is said: "On the same principle, to show an employer's knowledge of an employe's incompetency, the employe's reputed character for competency, and perhaps also particular acts of incompetency, may be shown as already explained; and in the same way, against a defendant whose keeping of a dangerous animal is in issue, the animal's reputation, as well as particular instances of its vicious behavior, are admissible."

Third. We hold that the court did not err in permitting Paine to be recalled as a witness and testify. This was a matter of discretion with the trial judge, and if not abused to the prejudice of the defendant, as there is no reason to believe there was in this case, the ruling should not be held erroneous or prejudicial.

Fourth. It is averred that the court erred in refusing to give to the jury as requested by defendant's counsel special charges No. 1 and 5. Said special charges are as follows:

"No. 1. It the jury find that the fireman was competent, and they further find that the plaintiff was injured because of the negligence or want of care of the fireman, the plaintiff can not recover for such injury, because the fireman and brakeman were fellow servants, and in such case the verdict must be for the defendant.

"No. 5. If the plaintiff voluntarily put himself into or remained in a known place of danger, and is injured, he can not recover."

The court did not err in declining to give charge No. 1 so asked tor. It assumed that the fireman and the plaintiff were fellow servants, and therefore, under the case supposed, could not recover. Whether they were fellow servants, or whether one was the superior of the other, was a question for the jury to find from the evidence, and evidence of the relative position of the two had been offered in the case, and the court properly refused to give the charge that they were fellow servants. In the general charge, which was an admirable one, and which clearly and concisely stated the law applicable to the case, the jury were instructed in a certain event to find from the evidence whether they were fellow servants or whether the one was the superior officer of the other.