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Nitz v. Toledo.

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were permitted to use it as a street, and if they did so use it generallyas a street, and it this place where these scales were, was used as a street, the city might be liable for taking out the scales and leaving an opening some six or seven feet deep from the top of the platform, without any guards, railing or lights, as this opening was left that night. It would be putting into the path of travellers a new danger that was not there before, and in a path that they had been permitted to use for a long period of years, and although Nitz may have gone out of his way when he went upon the platform, although he might have walked upon the street, yet he was not a trespasser in walking upon this platform, and if the scales had been used there as a street for a long period of years with the knowledge of the city, then when he stepped off the platform he was stepping upon what he had a right to suppose was a street and which had been used as a street for a long time, and we think that the court below was in error in charging the jury in substance that if that platform was used for market purposes and originally intended for that use only, and it Nitz was walking upon it for his own convenience, that the city would not be liable under any circumstances if it removed these scales and thus made a deep pit which Nitz fell into, and this portion of the charge may have misled the jury, Irom the fact that the evidence was conflicting as to whether he was walking upon the street or upon the platform, and probably was prejudicial to the plaintiff upon the trial of the case.

On page 115 of the record is a portion of the charge which is complained of. The court said to the jury:

"It he was so guilty of negligence, he cannot recover in this action, although you may find from the testimony that the defendant, the city of Toledo, was negligent, as claimed; it the negligence of the plaintiff contributed in any degree to the bringing of this injury upon himself, there can be no recovery.

Prior to this passage in the charge, the court had called attention to certain things which would constitute negligence on the part of Nitz, to-wit, that if, notwithstanding the obstructions, it any were there, he walked into this hole, that would constitute negligence on his part. Ot course, negligence of that kind would contribute directly to his injury, and to that portion of the charge there could be no objection, but the court follows it up with this general instruction, that it the negligence of the plaintiff contributed in any degree to bring this injury upon himself, there can be no recovery.

This instruction, it seems to us, while it may not have been prejudicial to the plaintiff and if it stood alone, might not be sufficient to reverse the case, is in direct conflict with the law as laid down in Schweinfurth v. Railway Co., 60 Ohio St. 215 [54 N. E. Rep. 89], where the Supreme Court say, in the second paragraph of the syllabus: "In an action for negligence, it is not error to refuse an instruction that the defendant cannot be held liable, though guilty of the negligence charged, if the negligence of the person injured contributed in any degree, or in any way to the injury of which he complains. Unless the negligence of the person injured contributed directly to, or was a proximate cause of the injury, it does not preclude a recovery."

And in the opinion, the court discusses the question at considerable length, citing a number of authorities, and they hold that it is not sufficient if the negligence contributed in a remote, or perhaps in the remotest degree, to the injury. That the rule is the same as to the

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Lucas Circuit Court.

plaintiff in an action for negligence that it is as to the defendant, and the negligence to bar a recovery must have contributed in some degree directly to the injury complained of. In Matthews v. Toledo, reported in [this case has just been affirmed by the Supreme Court] 11 Circ. Dec. 375 (21 R. 69), this court held a charge erroneous, that if plaintiff's own negligence contributed in any degree to the bringing of this misfortune upon herself, she is not entitled to complain of the city of Toledo, although the sidewalk may have been defective and the officers of the city having those matters in charge may have been guilty of negligence in failing to repair or remedy that defect. Unless the negligence of the person injured contributes directly to, or was a proximate cause of, the injury, it does not preclude a recovery.

This instruction of the court being contrary to this express holding of the Supreme Court of the state upon this question, we must find to be erroneous, and to that extent there was error in the charge of the court.

It is complained further that the court erred in its charge to the jury on the question of notice. After the court had finished its general charge, the city solicitor said to the court: "I think your honor has overlooked the question of notice, either actual or constructive." And the court said, among other things, in response to this:

"It you find from the evidence in the case that the hole was left there, not by reason of any procurement of the city, or of those having charge of the matter, then the city council, or the street commissioner, or the parties who were placed in control of the street, are entitled to notice of this defect. There is no evidence in this case that actual notice was brought to the knowledge of the street commissioner of the existence of that hole, or of any of his employes, and before the city could be held for the negligence of the common council, or of the street commissioner, or of his employes in that regard, it is necessary that the hole should have been there for such a length of time as in the exercise of ordinary prudence these officials having the matter of the protection of the streets in charge would have known of its existence. In such cases, that is to say if this hole were there for such a length of time before the plaintiff was injured as that in the ordinary performance of their duty and the exercise of care on their part, those having the streets in charge would have known of the defect, then the city had constructive notice knowing of this defect and having had time to correct it, would have had constructive notice, which would render the city liable, provided the plaintiff was injured without any fault on his part.

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The charge in effect instructed the jury that there was no evidence of actual notice to the street commissioner of the existence of the hole, and that before the city could be held for negligence it was necessary that the hole should have been there for such a length of time, etc., and prior to that the court had said to the jury:

"It the city of Toledo through its officers entrusted with the matter of placing scales on this spot, knew of the removal of the scales and procured their removal, then, of course, the city would be held to notice of the natural results of the removal of these scales, and if the removal of the scales which were there by the authority of the city, necessitated the leaving of a hole in the street, then it was the duty of the city, or of those having this matter in charge for the city, to see that it was properly guarded, so that those using the street in a proper way, might not be injured. If this hole was made there, however, and the

Nitz v. Toledo.

officers of the city having the matter in charge-having the protection of the streets in charge-or the removal of the scales in charge, had no knowledge of such removal, then they were entitled to reasonable notice, so they could protect this place by placing guards or in some way putting it into position so that persons liable to be injured there would be protected.

The trend of this instruction is that it is necessary that some officer of the city who had charge of the streets, such as the street commissioner, should have had knowledge of the making of this hole or of the removal of these scales.

The undisputed facts are that Mr. Mulhenny had leased these scales from the city in 1896, for a certain amount per year, and that he had occupied the scales until August, 1899, a short time before this accident occurred, when the city council, by formal resolution, leased these scales to a man by the name of Otto and thereby terminated their relations with Mr. Mulhenny, but Mulhenny not getting out, on October 27, three days before this accident occurred, the city, through a police officer, whose duty it was to serve notices for the city, notified Mulhenny to remove his scales and give way to Otto, and within three days after, to-wit, on October 30, Mulhenny removed the scales, and after removing them went to the city auditor and notified him personally that he had removed the scales, and the city auditor, on the same day, informed Otto that the scales had been removed and that he could move in, pursuant to his contract with the city. So that the undisputed evidence in the case in fact showed that these scales were removed by the authority and the direction of the city; Mulhenny removing them on October 30, by reason of a personal notice which he had received three days before from Officer Knapp to remove the scales and make way for Otto.

It is hard to see how the city could claim that it had no notice of the removal of these scales when they had been removed by its express authority and direction. If the city ordered the removal of the scales it certainly had knowledge of their removal and that a hole four or five feet deep, below the level of the street, would be created. And we think the court should have instructed the jury that if this resolution was passed by the council, as the evidence shows it was, and it Mr. Mulhenny was notified by the city to take his scales out, that that would constitute notice to the city that an excavation would be exposed and left there. And, more than that, the undisputed evidence is that Mr. Kohn, the superintendent of the market, was present and saw the scales removed. It took about a day and a half to take them out, and we take it that one of the duties of the superintendent of the markets would be to see that the market place was not rendered dangerous either by obstructions or by excavations, and that the actual knowledge and presence of the market superintendent when this hole was being made would be some notice to the city of the fact that there was an excavation there.

For these reasons, in our judgment, this instruction to the jury was misleading and errorneous under the undisputed facts of the case and may, and probably did lead the jury to conclude that inasmuch as these scales were taken out at noon and this accident happened that evening, that there was no constructive notice, and that no actual notice being shown to the street commissioner or other person having the street actually in charge, that therefore the city would not be liable for this injury, and we think, under the evidence in the case, this instruction

Lucas Circuit Court.

ought not to have been given; the jury should have been charged that if the facts were as the plaintiff claimed, that constituted notice to the city without any further notice to anyone. On this question of notice to a city, where it has authorized an excavation to be made, a decision of this court, where the opinion was rendered by Judge Scribner, is in point. In Gable v. Toledo, 9 Circ. Dec. 63, the first paragraph of the syllabus is:

"A city having authorized an excavation to be made upon a public street, which is necessarily dangerous to the public, is bound to see that such excavation is properly guarded. It is not necessary, therefore, in order to recover fcr injuries received from such an excavation, left unguarded, to show that the city had knowledge that it was being allowed to remain in a dangerous condition; that on nights previous to the accident it had been left unlighted. Testimony tending to prove such facts is therefore immaterial.'

The question is discussed at some length by Judge Scribner in the opinion and the authorities cited, and it finally comes down to this: That a city cannot complain that it does not have notice of a thing which it itself directs and authorizes, for that is notice.

We find no other errors in the record, but for these to which attention has been called. The judgment of the court of common pleas will be reversed and the cause remanded for a new trial.

NEGLIGENCE.

[Lucas Circuit Court, June 18, 1901.]

Haynes, Parker and Hull, JJ.

PENNSYLVANIA Co. v. ANN MAHONEy, Admx.

1. DUTY OF RAILWAY AS TO MOVING SIDETRACKED Cars.

Notwithstanding the absence of statutory regulations or requirements, a railroad company is required to exercise care proportionate to the dangers at a place where employes, in the discharge of their duties, are required to cross the railway tracks. Thus it is the duty of a railway company operating a side-track where cars are stored, and where employes are frequently obliged to cross between the cars, to give warning of a purpose to move such cars.

2. Rule as to PassengeRS NOT APPLICABLE TO EMPLOYES.

The rule of law which excuses passengers from the obligation to observe a strict lookout for trains and locomotives when alighting from or getting upon trains over the tracks of a railway company, does not apply to employes whose duties may require them to cross the tracks in the yards or at the depots of the railway company. Wabash Railroad v. Skiles, 64 Ohio St. 458, followed.

3. DUTY OF EMPLOYE IN CROSSING TRACK.

Where the servant is not engaged at work upon the track in such a way as to have his attention drawn from trains coming or going, but is simply passing over the track, he is obliged to exercise as high a degree of care with respect to looking and listening as any other person lawfully or of right passing over the track. Wabash Railroad Co. v. Skiles, 64 Ohio St. 458, followed.

4. CONTRIBUtory Negligence DefeaTING RECOVERY.

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A railroad employe engaged in operating a stationary engine and dynamo situated on opposite sides of a sidetrack, running through a cut, and where stored, is within the rules above stated, and in attempting to cross the railroad track without looking or listening for the approach of an engine, is guilty of contributory negligence which will defeat his recovery notwithstanding the negligence of the railroad company in failing to sound bell or whistle.

Pennsylvania Co. v. Mahoney.

5. WHEN ONCE LOOKING AND LISTENING WILL NOT EXCUSE.

The fact that such employe once looked and listened before attempting to cross the track will not excuse him if, before crossing, he allowed sufficient time to elapse for an engine to come into position where it would render it dangerous for him to cross, and he then attempted to cross without looking or listening.

& CONTRIBUtory Negligence-Burden of PROVING Excuse.

Where the circumstances disclose contributory negligence, the matter of excuse must be shown by the person injured and the rule is not different where the person is deceased; then it must be shown by the person seeking recovery for the death.

7. EVIDENCE of Custom of Signals Competent.

Evidence that it was the custom of a railway company to give warning of the

approach of trains or engines at a point where employes were obliged to cross in attending to their duties, is competent to rebut a possible inference of contributory negligence; such custom might come to have the force of a rule of the company requiring such warning; and an employe relying thereon might be excused from looking or listening; under such circumstances it would not lie in the mouth of the company to say that an employe must be vigilant and suspicious, and watch out all the time for a violation of duty upon the part of the company or some employe of the company.

& RULE AS TO TESTIMONY ADMITTED.

Testimony admissible for any purpose should be allowed to go to the jury under proper instructions and it is not good ground for refusing to receive it that it was not admissible as proof of the substantive ground of relief sought.

9. EVIDENCE RULED OUT AND ISSUES NOT Submitted.

There is no authority upon which a reviewing court can consider evidence which has been ruled out or determine results upon issues which might hav been in the case but which were not submitted to the jury.

HEARD ON ERROR.

E. W. Tolerton, for plaintiff in error.

C. O. Hunter and King & Tracy, for Hocking Valley Railway Co.
Hurd, Brumback & Thatcher, for defendant in error.

PARKER, J.

The action in the court below was by Ann Mahoney, administratrix of the estate of Patrick E. Mahoney, deceased, against the Pennsylvania Company and the Hocking Valley Railway Company to recover on account of the death of Patrick Mahoney, alleged to have been brought about by the negligence of the defendants in the operation of a locomotive engine and cars upon certain tracks in the yard of the Hocking Valley Railway Company in the northern part of the city of Toledo, which tracks seem to have been used and occupied by both of the defendants jointly for their joint use and benefit.

The amended petition sets forth that the Pennsylvania Company is a corporation organized under the laws of Pennsylvania; that it owns and operates a line of railroad in Lucas county and has an office and agent therein; that the defendant, The Hocking Valley Railroad Company, is a railway corporation organized under the laws of the state of Ohio, and owns and operates a line of railroad in Lucas county, and has an agent therein. I read from the petition :

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Plaintiff further says that some time prior to May 11, 1899, the decedent, Patrick E. Mahoney, was in the employ of the defendant, The Hocking Valley Railway Company, as an electrician and engineer, doing work for the said company on its ore docks in the said city of

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