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Lucas Circuit Court.

company that it should give such warning, and that it he acted in reliance upon the observance of such custom he would not be negligent in so doing; that 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. We think there is a great deal of force in this suggestion. We have given heed and weight to it heretofore in the consideration and decision of cases in this court. We call to mind a number of cases in which we have used language of like import, and notwithstanding what is said in Railway Co. v. Skiles, supra, in the course of the opinion, if such a case is as suggested in argument were presented by the record and certainly established, we would hesitate a long time before we would say that an employe might not rely in any degree or to any extent upon other employes performing their duties. We see nothing in the case of Railway Co. v. Skiles, supra, that would require us to hold in this case if the evidence disclosed such a rule or custom, that this employe might not have placed some reliance upon the observance by the company and its employes of such rules or customs, and that such reliance might not so far justify his action in passing between the cars as to authorize a jury to find that he was not guilty of contributory negligence. But we have no such case upon record. Among the cases to which we have applied this rule is the L S. & M. S. Ry. Co. v. Schultz, 9 Circ. Dec. 816 [19 R. 639], where a man was run down by a locomotive on the Lake Shore road, and the Wells case [unreported], where a train was being run upon what was called the "wrong track and an employe was walking upon the track in reliance upon the rule that no train or locomotive would be run upon that track in the direction in which this one was going, without warning to the employes; and there were some other cases mentioned in argument, but, as I have said, the case here, upon the evidence, is not brought within the principle there applied.

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There was some evidence introduced on behalf of the plaintiff below tending to show that it was customary for the railroad company to give warning of the approach of locomotives or cars in this cut, and it was insisted by counsel for plaintiff below that notwithstanding there was nothing about this in the pleadings and it was not relied upon as a substantive ground for recovery, they had a right to show this to overcome the possible inference of contributory negligence arising out of his conduct; and it appears to us that counsel for the plaintiff below were correct in this contention. If they were not correct, we are bound to say that we do not understand the rule laid down in the case of Railroad Co. v. Whitacre, supra. The fact that the testimony may not have been admissible for some purpose, was not good ground for refusing to receive it. If it was admissible for any purpose, it was the duty of the court to allow it to go in and to give the jury proper instructions as to the use to be made of it. I say there was evidence of this kind introduced, but in the course of the trial it was all ruled from the jury, they were not allowed to give it any consideration, and the issue, therefore, was not submitted to nor passed upon by the jury. If the court had allowed that issue to be gone into fully by both sides and had submitted it to the jury and the jury had returned this verdict, it may be that we would have found ourselves able to sustain it; but we know of no authority for considering evidence which has been ruled out, or for determining results upon issues which might have been in the case but which were not

Pennsylvania Co. v. Mahoney.

submitted to the jury; and although it may be a hardship in some aspects and wrong to the defendant in error to take this testimony from the jury at the instance of a party and then for a reviewing court to feel obliged because of the insistence of the same party to give consideration to the fact that it has been taken from the jury, yet that is the situation as it is presented to us, and we teel bound to pass upon the record as we find it. We do not mean to intimate, much less decide, what we might do with a case coming up in the form upon the record that this was assumed to be argument by counsel for defendant in error, but, as the case stands, the majority of us feel that the verdict of the jury in so far as it finds that the deceased was not guilty of contributory negligence, was against the weight of the evidence, and for that reason and for that alone-that being the only error we discover in the record-the judgment of the court below will be reversed and the case remanded.

HULL, J., dissents.

NEGLIGENCE.

[Lucas Circuit Court, July 2, 1901.]

Haynes, Parker and Hull, JJ.

ANN ARBOR RAILROAD Co. v. ARTHUR KINZ, BY HIS NEXT

FRIEND, GEORGE KINZ.

LIABILITY Maintaining Dangerous EmBANKMENT.

Where a railroad company, in removing earth from its grounds, left on one side of the excavation a steep embankment, the face of which was concave and overhanging the excavation, creating a place where boys would naturally assemble and where, to the knowledge of the railway company, they were allowed, for more than a year, to play, such company is liable for injuries caused by the falling of the bank, whether the persons injured are regarded as trespassers or licensees.

HEARD ON ERROR.

Hamilton & Kirby, for defendant in error, cited:

Sioux City & P. R. Co. v. Stout, 84 U. S. (17 Wall.) 657; Bennett v. Railroad Co., 102 U. S., 577; Union Pac. R. Co. v. McDonald, 152 U. S. 262, 270, 273 [14 S. Ct. Rep. 619]; Bellefontaine & Ind. Ry. Co. v. Snyder, 18 O. S. 399 [98 Am. Dec. 175]; Harriman v. Railway Co., 45 O. S. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507]; Findlay Brewing Co. v. Bellman, 4 Circ. Dec. 22 (9 R. 277); Lynch v. Murdin, 1 Q. B., 29 (Leading case); Powers v. Harlow, 53 Mich. 507 [51 Am. Rep. 154]; Braum v. Labrot, 81 Ky. 638; Davis v. Railway Co., 58 Wis. 646 [17 N. W. Rep. 406]; Black's Law and Practice in Accident Cases, p. 89; Cooley on Torts, 604-7; Wharton on Negligence, Secs. 349-52; Thompson on Negligence, Secs. 304, 1129, 1140, 1181-4 and 5; 2 Sherman & Redfield on Negligence, p. 1222.

Where children are on defendant's road under an implied license the company owes them a duty to abstain from injuring them carelessly or negligently. Driscoll v. Newark Co., 37 N. Y. 637 [97 Am. Dec. 761]; Nicholson v. Railway Co., 41 N. Y. 525; Sutton v. Railway Co., 66 N. Y. 243, 248; Mackay v. Vicksburg, 2 So. Rep. 178 [64 Miss. 777]; Brinkley Car Co. v. Cooper, 31 S. W. Rep. 154 [60 Ark. 545; 46 Am. St. Rep. 216]; Scofield v. Burkett, 2 S. W. Rep. 838 [90 Mo. 284]; 83 Ky., 119 (child fourteen years of age in R. R. yards).

Lucas Circuit Court.

Child swinging from a gate which fell. (Court sustained liability of R. R. Co. Knew of children being in the habit of going there.) Chicago, K. & W. Rd. v. Bockoven, 36 Pac. Rep. 322 [53 Kan. 279].

Deep pit in a populous city. Pekin v. McMahon, 39 N. E. Rep. 484 [154 I. 141; 27 L. R. A. 206; 45 Am. St. Rep. 114].

Liability for negligent injury of trespasser after knowledge of his presence. Herrick v. Wixom, 80 N. W. Rep. 117. (Mich.) 81 N. W. Rep. 333, Hector Mining Co. v. Robertson, 45 Pac. Rep. 406 [22 Colo., 491].

Keeping by waterworks company in its grounds deep reservoirs attractive to small boys who come there with its permission to play, is liable if one of them falls in and is drowned. Price v. Water Co., 50 Pac. Rep. 450 [58 Kan. 551]; followed in Biggs v. Barb Wire Co., 56 Pac. Rep. 4 [60 Kan. 217].

Owner liable where elevator is maintained and held to hold out implied invitation to five year old child, and liable for injury from unsafe condition of his property. Siddall v. Jansen, 48 N. E. Rep. 191 [168 Ill. 43; 39 L. R. A. 112].

Unguarded tank for reception of hot mash, child injured; held, owner liable. See Defiance Water Co., v. Olinger, 54 Ohio St. 532 [44 N. E. Rep. 238; 32 L. R. A. 736]; Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio St. 560 [54 N. E. Rep. 528]: Pittsburg, C. & St. L. Railway Co., v. Shields, 47 Ohio St. 387 [24 N. E. Rep. 658; 21 Am. St. Rep. 840]; Powers v. Harlow, 53 Mich. 50 [19 N. W. Rep. 257].

Railway Company required to fence in its tracks and grounds. Section 3334, Rev. Stat. of Ohio.

Smith & Beckwith, for plaintiff in error.

HAYNES, J. (orally).

This action is brought to reverse the judgment of the court of common pleas in a personal injury case. The case is one that presents an interesting question of law, and it has been argued upon a single question of law, which goes to the foundation of the plaintiff's right to

recover.

Briefly, the plaintiff, a boy, now of thirteen years, and perhaps about eleven years of age at the time of the occurrence, was playing upon certain grounds belonging to the Ann Arbor Railroad Company, near its track, at a point where there had been an excavation made in a bank, for the purpose of cutting down a grade and levelling off some land for the use of the railroad company for its tracks. At this point the bank was about thirteen feet high and had been excavated with a steam shovel, which in its movements, described a curve making a curved space near the base of the embankment which went towards the top quite perpendicularly but left, to some extent, an overhanging portion of the bank. After this work had been done the boys occupied the ground for the purpose of playing base ball and continued to do so for a period of fourteen or fifteen months, perhaps, and small boys gathered around for the purpose of witnessing the games, and during that time were in the habit of amusing themselves by digging the earth out of the bank with their fingers, or sticks, and in one or two instances it is said, with a pick, and making it into balls and throwing ihem at each other and played in that way; and while they were so engaged, a portion of this bank so overhanging tell upon the plaintiff and injured him very seriously.

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Railroad Co. v. Kinz.

It is contended on behalf of the railroad company that it owed no duty to these boys, playing on its land and occupying its premises, in regard to their safety in so coming there. On the other hand, it is claimed on the part of the plaintiff that the defendant owed a duty to these boys whether they were trespassers or licensees; as they were in the habic of going there with the knowledge of the defendant and playing in the manner that I have described.

The question is an interesting one, but I shall not attempt to enter upon a discussion of it at present to any great extent. The authorities cited are voluminous. Perhaps the latest collection of authorities upon this subject is found in Thompson's last work on negligence, the last edition, where there is a very full and able discussion and a citation of a great many authorities on the subject. Mr. Thompson concedes, more in anger than in sorrow, I think, that the late trend of decisions has been against the holding of the owners of property liable under these circumstances, but thinks the law should be otherwise, and that it should be as he has stated it in his former edition. It is true there is a great diversity of decisions and a great contrariety of opinion on this subject; opinions diametrically opposed to each other and delivered with great learning and ability by courts of high standing.

This is a case, as it will be perceived, where the owner of the property had upon its premises created or permitted a condition of affairs that was dangerous to boys; it is said in the petition, that it was a place where boys would naturally gather and congregate to play around this bank, and that allegation seems to be true, and in the view we take of it, sitting as we do as a subordinate court, we think our first duty is to inquire what the law of Ohio is upon this subject and what is the trend of decisions on the part of the Supreme Court of this state.

Perhaps the most important case which presents itself is that of Harriman v. Railroad Company, in 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507]. I think a perusal of that case and of the cases there cited and the discussions of the court, show that the Supreme Court of this state tends to the doctrine of liability on the part of the owner of property under those circumstances, to a person who may be injured and goes on there, either as a trespasser or as a licensee.

Holding those views and believing that we stand upon the decision of the Supreme Court, we feel compelled to hold in this case that the judgment of the court of common pleas should be affirmed, and leave it to the Supreme Court, where the case will undoubtedly go, and where it ought to go, for their final decision. Certainly it is an interesting question and should be passed upon by that court. The 'judgment of the court of common pleas will, therefore, be affirmed, reasonable cause certified and no penalty allowed.

Lucas Circuit Court.

HOMICIDE-VIEW OF PREMISES-TRIAL.

[Lucas Circuit Court, July 2, 1901.]

Haynes, Parker and Hull, JJ.

*SOLOMON C. REIGHARD V. STATE OF OHIO.

1. PRESENCE of Accused Upon View of Premises.

Section 7283, Rev. Stat., providing for a view of the premises where a crime has been committed, and directing the manner in which the jury shall be conducted to the place, makes no provision for the defendant, the judge or other officers constituting the court to accompany the jury; it makes no provision for anything that savors of a trial or the taking of evidence thereat. On the contrary, the view is not for the purpose of giving evidence to the jury, but is to enable them to understand and apply the evidence given in open court. However, if the accused requests permission to accompany the jury, he should be permitted to go.

2. ACCUSED MAY WAIVE PRIVILEGE OF ACCOMPANYING JURY.

Whether the view of premises by the jury, provided for by Sec. 7283, Rev. Stat., be part of the trial or not, the accused may waive the privilege of accom panying the jury, and it will not be improper for the jury to view the premises in the absence of the accused under such conditions.

& WAIVER OF RIGHT TO ACCOMPANY JURY.

Where a person accused of a crime is present in court, with counsel, and asks the court for an order to have the jury visit the premises where the crime with which he is charged was committed, and take part in the discussion, aiding in giving directions as to the places to be visited, and the jury is taken from the court room in pursuance of such order without objection, request or intimation, by accused or counsel, that he desires to accompany them, and th view is had without anything improper having occurred, and upon the retur of the jury, accused, through his counsel, in open court, expresses himse as satisfied with the view and no complaint or objection is made until verdict is returned against him, he will be deemed to have waived his right to accompany the jury upon such view.

4 CHARGE TO JURY—ABSTRACT PROPOSITIONS-RULE APPLIED.

In the trial of a homicide case in which the defense was insanity, a request to charge that "manslaughter is the unlawful killing of another without malice, either express or implied, which may be either voluntary upon a sudden heat or inadvertently, but in the commission of some unlawful act," though correct as a definition or an abstract proposition of law, was properly refused where the trial judge had, in his general charge, already defined the different degrees of homicide. Under such circumstances, the defense being insanity, not sudden heat or passion, the charge could have had no application to the facts, and might have been misleading.

h: FURNISHING JURY A Lunch at Night NOT IMPROPER.

Where the jury in a criminal case retired late in the afternoon and were instructed that they would be furnished with a place to sleep and the sheriff was ordered to furnish them with necessary food, merely asking the jury if they wished a lunch, about eleven o'clock at night, as they were being taken by the sheriff to a place to sleep and an affirmative response by some of them,. whereupon they were given a lunch, nothing being said about the trial of the case or anything that could be construed as prejudicial to the defendant, does not constitute improper conduct on the part of a sheriff or jurv.

6. VIEW OF PREMISES-QUESTION BY JURY TO STRANGER.

While a jury in a homicide case were being conducted to view certain premises, under Sec. 7283, Rev. Stat., the mere fact that a juror asked a woman some questions in regard to the premises, but it does not appear that any answer was made or anything done thereat that could prejudice the defendant, will not justify reversal.

* Leave to file petition in error refused, October 15, 1901.

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