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Cuyahoga Circuit Court.

The plaintiff knew that the building was under the control of its owners or manager, and not under the control of the defendant. And there is a difference in the obligation of the employer in the manner of furnishing a suitable place for the employe to work where it is to be done upon the premises of a third party, and where it is to be done at the shop or factory of the employer.

In Dixon v. Western Union Telephone Co., 68 Fed. Rep., 630, the plaintiff sued to recover for injuries sustained by him while in the employ of the defendant, by reason of the insecurity of an iron spike driven into the telegraph or telephone pole of another company, which he had occasion to climb in the discharge of his duty as an employe of the defendant.

On page 633 this language is used in the opinion:

"The plaintiff was acting within the scope of his employment, in going, as a pioneer, into a place of danger, which he knew his employer had not inspected, and could not inspect, except by causing him, or some other employe, to perform that duty. He was a man of mature age, and needed no instruction to warn him of his danger or his duty. He knew that no one knew of the condition of the pole or the spikes better than he did, and that no one could know better than he the sufficiency of the spikes to bear his weight. If he gave the matter a thought, he knew that he must rely upon his own judgment, in placing his weight upon the spikes, and that before doing so he ought to test them, to see if they were sufficiently secure to trust his weight upon them. Under such circumstances he had no right to rely on the judg ment or inspection of his foreman."

Hughes v. Malden and Melrose Gas Light Co., 47 N. E. Rep. 125; [168 Mass., 395]. This was an action brought by an employe of the light company for injuries received while he was working in a trench which had been excavated by the city in one of its streets. The sides of the trench gave way, and the plaintiff was seriously injured. The syllabus of the case reads:

"At the trial of an action against a gas light company for personal injuries to the plaintiff, while in its employ, caused by the caving in of the sides of the trench in which the plaintiff was at work, there was evidence that the trench had been dug four days previously by a city in one of its streets, and that although the earth in that vicinity was constantly shaken by the moving of trains and heavy teams, and although the trench was six feet wide and of about the same depth, having earth thrown up on either side to an additional height of eighteen inches, it had not been shored or braced; that by the digging of the trench, over which the defendant had no control, its gas pipe had been exposed, and that, pursuant to orders from the city to remove such pipe from the trench, it set the plaintiff to removing it; that the plaintiff had had two or three years' experience in digging trenches; and that the accident happened after he had been at work three hours, and just after the defendant's superintendent had left the trench. Held, that the plaintiff was not entitled to recover, either at common law or under the employers' liability act, and that evidence offered by him that he made no examination of the trench, but relied on the defendant's superintendent to provide for his safety, was properly excluded."

In the opinion, on page 396, this language is used:

"The only question is what the plaintiff had a right to expect from the defendant when set to work in such a place. He had not a right to expect it to shore the sides of the trench or to make it safer than it was

Shadle v. Illuminating Co.

because, as was manifest, and as the plaintiff must be taken to have known, the defendant had no control over the trench. He had a right to expect that, if the defendant knew of any danger which the plaintiff did not know and ought not to be assumed to know, it would inform him. But no such knowledge on the part of the defendant was shown. It does not appear to have known anything except what was visible to the eye, or to have been able or bound to infer from what was visible anything which the plaintiff with his experience was not equally able to infer. What more could it have done?"

How can it be claimed here that the defendant either had knowledge of any defect or want of security in this band upon which the plaintiff placed his foot, or ought to have had such knowledge, to any extent greater than the plaintiff had or ought to have had such knowledge, it is difficult to understand.

We think the court was clearly justified in the course pursued in directing the jury to return a verdict for the defendant.

As to the questions raised upon the introduction of evidence, it is sufficient to say that in each instance the exception taken is to a ruling of the court sustaining an objection made by the defendant to a question put by the plaintiff's attorney in the examination of his own witness, and, in no instance, is it stated what answer was expected from the witness.

The first of these rulings is upon this question, put by the plaintiff's counsel to the plaintiff :

"Well, when you got down to that place that day and found such insecure footing, the place to do your work, why didn't you get out?

Not only was it not here stated what answer it was expected the witness would give if he were permitted to answer, but it seems difficult to think of any answer which could, by possibility, have been competent.

However, counsel immediately upon the sustaining of the objection by the court to this question, asked substantially the same question in these words:

"When you found yourself down there on that, in that place, why didn't you get out?"

And the witness answered: "I intended to as quick as I got the wires connected."

Question. "Why didn't you get out before you got the wires con

nected?"

Answer. "I don't know."

Question. "Tell us how you could get out then."

Answer. "No way, only slide down to the next floor; slide down to the sixth floor to get out, the same as I slid down from the eighth to the seventh."

It is clear that in no view that can be taken of the case, was there any error in the ruling of the court on this question.

The next complaint made on the introduction of evidence is found on page 51 of the record, the same witness being on the stand, and questioned by his own counsel.

Question. "If you had thus turned around so as to face those four wires that were hanging down, you may state how you could have supported yourself."

This question was objected to, and the objection sustained. As already said, no statement was made as to what answer was expected

Cuyahoga Circuit Court.

from the witness, but, as he had already described his surroundings, it would not seem that an answer could have been given which would have been of any benefit whatever to the plaintiff.

Without calling special attention to the other rulings of the court upon the introduction of evidence, it is sufficient to say, we find no. error in such rulings, which would justify a reversal.

And the judgment of the court of common pleas is affirmed.

NEGLIGENCE-SIDE-WALKS.

[Cuyahoga Circuit Court, March 5, 1901.]
Caldwell, Hale and Marvin, JJ.

ANNA STAMBERGER V. Cleveland.

ICE AND SNOW-INCLIne of Sidewalk.

In an action against a municipal corporation to recover for injuries sustained by falling upon a slippery sidewalk, evidence on the part of the plaintiff was properly excluded where the only negligence charged was that the city permitted ice and snow to accumulate on a sidewalk to such an extent that because of an inclination of two-eighths of an inch to the foot greater than that provided for in its ordinance that the sidewalk became dangerous to pedestrians.

HEARD ON Error.

Johnson & Hackney, for plaintiff.

Hogsett, Beacom, Excell, Gage & Carey, for defendant.

MARVIN, J.

The plaintiff here filed her petition against the city of Cleveland, alleging the fact that the defendant is a municipal corporation; that it has a population of more than 350,000; that it has the sole care, supervision and control of all public streets, highways and sidewalks along the same within the said city: that it is charged with the duty of having such sidewalks properly constructed and in good repair, and of keeping the same free from ice and snow in that part thereof greatly frequented upon and along its most public streets; that one of the ordinances of said city requires it to have such sidewalks properly laid so that the top surface thereof, on points thereon, coincide with a line "beginning at the curb line with the established grade, as determined by the Chief Engineer, thence extending to the street lines at right angles to the curb lines with a rise of three-eighths inch () to the foot and no more." That Euclid avenue is one of the principal streets of said city: That upon its sidewalks many pedestrians travel during the day and evening: That a sidewalk along the side of said street was permitted to be maintained with an inclination of five-eighths of an inch to the foot. That ice and snow were permitted to accumulate upon said sidewalk to such an extent that because of such inclination of the sidewalk, it was dangerous for pedestrians to walk upon. That the defendant had knowledge of such condition of the sidewalk, and plaintiff without knowledge and without any fault upon her part was, on February 14, 1899, while walking upon said sidewalk, caused to fall thereupon, whereby she was greatly injured and for which she prays to recover damages.

Stamberger v. Cleveland.

An answer was filed to this petition, admitting the corporate capacity of the city, and the fact that Euclid avenue is a public street in the same, and denying each of the other allegations of the petition, and alleging that if the plaintiff was injured, it was by reason of her own negligence.

When the case came on for trial, an objection was made by the defendant to the introduction of any evidence on the part of the plaintiff, and this objection was sustained, the case taken from the jury, and judgment entered for the defendant. To reverse this judgment, the present proceeding is prosecuted.

Do the allegations

The question, then, for consideration here, is: of the petition set out a cause of action against the defendant?

If any negligence is charged on the part of the city, it is because it permitted snow and ice to accumulate on the sidewalk, and to allow the sidewalk to have an inclination of two-eighths of an inch to the foot greater than provided by its own ordinance.

In Chase v. Cleveland, 44 Ohio St., 505 [9 N. E. Rep., 225; 58 Am. Rep., 843], the syllabus reads:

""

In a suit against a municipal corporation to recover for injuries occasioned by falling upon a slippery sidewalk, allegations in the petition which aver that the defendant is a city of the first class; that the street where the accident occurred, is a public highway within the corporate limits; that upon a sidewalk in front of property of a private owner, the city negligently suffered ice and frozen snow to accumulate, and for a number of days to be beaten smooth and slippery, and for that reason dangerous to those passing along it, and to so remain for some days, of which condition the city had or might have informed itself in time to have made the sidewalk safe before the accident, are not sufficient to show negligence."

This, then, clearly limits the negligence on the part of the city, charged in the petition in this case, to the fact that the city had an inclination of two-eighths of an inch to the foot greater than provided in its ordinance.

The case of Bretsh v. Toledo, 1 Dec., 96 (1 N. P., 210), was decided by Judge Pugsley of the court of common pleas of Lucas county. The case was very much like the present one. The demurrer to the petition was sustained. The judge who made the ruling, is recognized as one of the most able in the state, and his reasoning seems to us satisfactory. See also Stanton v. Springfield, 12 Allen, 566; and Gilbert v. Roxbury, 100 Mass., 185.

There was no error in excluding evidence under this petition.

Lucas Circuit Court.

CONTRACTS-EXECUTORS.

[Lucas Circuit Court, July 7, 1900.]

Haynes, Parker and Hull, JJ.

IN RE ESTATE OF MARY Ward, Deceased.

1. RES ADJUDICATA-INCONSISTENT SEPARATE Claims.

A judgment in an action against an estate based upon an agreement between a mother and sons, by which the latter were to work her farm and after the expenses were paid to have all the proceeds, is not res adjudicata of a claim for compensation for services for working the same farm under an agreement, express or implied, to pay for the same; the claims are separate and distinct, notwithstanding they are inconsistent.

2. PARENT AND Child-Compensation for Services-Rule as to. Compensation for services of a son after he becomes of age, and living at home, will not be presumed, nor will an agreement be implied to pay for the same, in the absence of such circumstances as clearly raise the inference that the parties so intended. The fact that a son was permitted to manage and control his mother's farm and sell the produce, and deposit the proceeds thereof in the bank or invest it in real estate in his own name, for a number of years previous to her death, does not, together with a judgment of court that there was no agreement by which he could continue under such an arrangement after her death, raise an implied agreement under which he may be permitted to recover compensation for his services subsequently rendered, particularly where it appears that the amount which he had previously received and invested in his own name amounted to full compensation for all the work he at any time performed. Where the justice of the case requires it, courts are rather apt to find an implied contract.

8. SUCH A CLAIM BARRED IN SIX YEARS.

A claim upon a contract, express or implied, for services in managing and controlling a farm, is barred by the six years' statute of limitations. Therefore, where a son living at home attained his majority in 1867, and continued to work at home until the death of his mother in 1879, under the arrangement above stated, the statute began to run against his claim for compensation, under an implied agreement, at the time when the services were performed, and is not postponed to a termination of the arrangement or a rejection of his claim as first adjudicated; and the fact that claimant was executor would not suspend the operation of the statute.

4 SUCH CLAIM ALSO BARRED BY SEC. 6113, REV. STAT.

Section 6113, Rev. Stat., providing that no executor or administrator shall be liable to a creditor of the deceased unless suit be brought within four years of the notice of appointment, applies to a claim of an executor that he has failed to bring action upon for nearly twenty years after his appointment and qualification.

5. Purpose of Sec. 6113, Rev. Stat.

The purpose of the provision as to giving notice of the appointment of an executor mentioned in Sec. 6113, Rev. Stat., is to notify outside creditors and the world in general of such fact, and not for the benefit of the executor himself, and if he has failed to publish such notice he cannot take advantage of his own neglect.

6 Nature of PROCEEDING Under SEC. 6100, Rev. Stat.

A proceeding commenced under Sec. 6100, Rev. Stat., by an executor for the allowance of a claim which he owns himself, is an action or suit in his behalf, and, so far as that proceeding is concerned, he is not the executor of the estate.

HEARD ON ERROR.

A. W. Eckert and C. W. Everett, for John Ward.
Ray & Cordell and T. L. Gifford, for contestants.

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