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Railway Co. v. Hudson.

has not charged him with being guilty of contributory negligence except in not being at his brakes and not promptly applying them and in Jumping.

Then they wanted to know how long a time it would take to pass over certain distances, involving complications and figures that were not important at all to the determination of the case.

But the main question relied upon, perhaps, by the railroad company in this case, is that the verdict is against the evidence in the case; that the verdict is not sustained, and that figures down to one little question of evidence. The brakeman, as I have already stated, this plaintiff below, was in the engine at the time that it became necessary to stop this train, and he had to travel from that upon the engine tender, over the tender on top of the first car, pass over three cars and on to the fourth car before he could set a brake; and the railroad company claims that that was very precious time lost by this brakeman, and they claim that his neglect to be at his post to set brakes the very moment the signal was given to shut down brakes, was time lost; that if he had at that time had his brakes he could have either stopped this train or he could have slowed down, so that he could have gotten off without injury to himself.

And the railroad company claims the same thing in regard to the rear brakeman; there seems to be some evidence that he was in the caboose, and when the whistle came for brakes it is claimed that he had to mount a car and go to where the brakes were before he could do anything, and that these men were both in violation of the rule of the company, and that this injury occurred to this party by reason of the combined negligence of the plaintiff below and his fellow brakeman who was with him, a fellow servant, and the jury was properly charged that if that was so that he could not recover in this case.

It was claimed on the other side, on behalf of the plaintiff below, that this train was running at thirty-eight or forty miles an hour; the track was a slippery one, and just that kind of moisture that makes the worst track that railroad men ever have, a sort of greasy track, and that he and his fellow brakeman were not at their posts at the very mo ment, but it took them some time to get there, yet it they had been at their posts at the time, they could not have set brakes enough so as to have brought that car to the point where it would have saved this party from his injury. It seems that the party clung to the top of the car until his own judgment taught him that he was likely to go into the wreck with his car among the others that had gone in, and his judgment at that time taught him to jump from the car. I should judge from his testimony that he leaped from the top of the car.

Now that question was submitted to the jury by a fair charge of the court, that if these two brakemen could have brought that train down to such a rate of speed that the plaintiff could have escaped without injury, that he could not recover, and the question of fact was, could he and his fellow brakeman have by their combined efforts, had they been on top of the car, done that?

There was some evidence on that question, and considerable evidence. The plaintif offered the evidence of the brakeman and the engineer and some other evidence upon that subject, which goes to show clearly that the train could not have been brought to that point where it would have been entirely safe, so that it would have been entirely safe to have jumped from the car.

43 O. C. D. Vol. 12

Lorain Circuit Court.

Then the railroad company offered evidence. The railroad company undertook to make a facsimile case by taking the same number of cars and starting a train and undertaking to stop it at this particular time, at this particular place; but the circumstances were not the same, and so far as making it up to the circumstances of the train that created the injury, they take the expert testimony of those parties as to whether they could have stopped, had the track been wet on which the experiment was tried, and had other circumstances have existed.

The jury must have been impressed with that testimony in about this way: In the train on which Hudson was injured, there were a number of brakes set, the engine was reversed, the track was sanded, and everything was done that was within the power of those parties, except the two brakemen were not right at their places when the signal was given, but the reversing of the engine and the sanding of the track was of that character that the wheels of the engine were worn down flat, where they run over the track, completely locked and sand under them. In the train that was stopped by the experiment, the engine was not reversed at all, nothing was done but to apply, as they claim, three air brakes and setting the brakes on top, the hand brakes, and one of the parties don't know whether that was done or not; they simply arranged that it should be done.

It must have struck the jury as being in some way not a fair experiment in regard to this matter. Then the conditions were different; it was not controlling evidence by any means; all the parties undoubtedly knew just what they were expected to do, and it no doubt makes a great deal of difference about stopping a train as to how the brake is set; it on a wet track, and the brake is set so solid that the wheels slip on the track, there is very little friction. The only way to get friction is to set the brake so tight that the wheel will turn a little and yet all the time keep dragging on the track heavily. It the track is moist, a sort of moisture gathers between the wheel and the track when it is slipping, and it slides as if running over grease.

The conditions were so different that we do not think that was a controlling matter at all; and the fact is one that is peculiarly within the province of the jury and not within that of the reviewing court. It is a matter that is not demonstrative at all, it cannot be demonstrated; you cannot prove it like adding two and two; after all the testimony in, it is a matter largely of good judgment upon all that evidence. That being true we do not think we can disturb it..

There is no complaint made in this case and a number of exceptions are taken to the admission and exclusion of evidence. We have examined all of them with a good deal of care and we find no error in any of them; but on pages 23 and 24 of the record the question is asked of defendant in error, whether he knew any rule in the book of rules where it is stated or designated the place where the front brakeman should ride, and he is permitted to answer that he did not. It then says that is an attempt to prove the contents of the book of rules; the book of rules was in witing, and was the best evidence. I presume that the object of the testimony was to show whether or not he knew of that rule, but under all the evidence in this case I presume with the jury it would make no difference under the charge of the court whether he knew it or not. We do not think there was any prejudicial error in that matter, because the rule was afterwards gotten before the jury, and if

Railway Co. v. Hudson.

the intent was to show the rule, why there could be no prejudice when it came before the jury, the rule itself, and if the testimony was to show he did not know it, the case was so tried that that could have no effect. Then on pages 122 and 124 Mr. Higgins is asked whether he received any notice from the superintendent of the track as to putting down new steel rails at the place where the wreck occurred. Now there is the rule that the superintendent shall have notice if several rails are to be taken up in making a repair of the track; if only one rail then the thirty telegraph pole rule applies; and it was probable, we have no doubt about it, that it was the duty of the company, by that rule, before taking up this track as they did, to notify the superintendent. And that is useless language, unless the superintendent is to do something; the object and purpose of notifying him is that he may look out for trains that are approaching, may adopt some reasonable means of doing it; so we think it was pertinent to show that they did not give him notice.

There is another error complained of. After the special findings were made, and the jury had found that Hudson, the plaintiff, was in the engine and not at his place, and must have found that he was guilty of contributory negligence, there is no doubt but what he was, then the company moved for judgment on those findings. In other words, they say that if he was guilty of contributory negligence, whether or not that negligence was the cause of his injury, he cannot recover . The company claims that if he was guilty of contributory negligence, that that ends the whole matter.

Well, now, that depends upon this: a party may be guilty of contributory negligence and yet be able to recover it that negligence was not the cause of his injury. We think the court properly submitted this question to the jury, and we believe the law to be, that if his contributory negligence was the cause of his injury he cannot recover; but if that was not the cause, notwithstanding his negligence, it would have happened to him-if he had performed his whole duty under these rules the same results would have happened-then we think that is not the cause of the injury. This rule of law is universal so far as we know. We know of no exception to it at all; in fact it is elementary, that a party, in order to fail to recover by reason of his own negligence, must in some way have contributed to the injury.

The judgment is affirmed.

CORNER LOTS-ASSESSMENTS.

[Hamilton Circuit Court, 1897.]

Cox, Smith and Swing JJ.
ARTHUR DUFFY V. NORwood.

1. TITLE TO STREET BY PRESCRIPTION.

Title by prescription is established in the public by the use of a street for more than twenty-one years.

2. CORNER LOT-ASSESSABLE FRONTAGE.

Where the house, stable, drive and footways, as well as the use of a cornor lot, show the same to be on the breadthwise front of the property, the frontage on such side will determine the assessable frontage for an improvement on the street abutting that side, especially where no driveway or walk connect with the street on the narrower side and there is no improvement fronting

thereon.

Hamilton Circuit Court.

Burch & Johnson, for plaintiff.
Wm. E. Bundy, for the village.
APPEAL.

Two questions were involved in this case: (1) Whether Huston avenue is a public street or merely a private way; and (2) what is the assessable frontage of plaintiff's property? The decree below found that title by prescription had been established in the public by use of the way for more than twenty-one years; and that the breadthwise frontage of the property on Williams avenue is the amount of the assessable frontage for the present improvement.

SMITH, J.

We are of the opinion that the holding of Judge Buchwalter in this case, as appears from his opinion published in Dully v. Norwood, 1 Dec. 85, was correct, and the same decree may be entered in this case, the village to pay the costs on appeal.

RAILROADS-APPROPRIATION.

[Trumbull Circuit Court, November 15, 1888.]

*PITTSBURGH & WESTERN RAILROAD Co. v. JACOB B. PERKINS. 1. RECEIVERSHIP-ACTION to CompEL APPROPRIATION.

Where a railroad company is in the hands of receivers appointed by the court in another state, not for the benefit of creditors, nor because the company is insolvent, but for some reason of which this court is not aware, presumably some scheme relating to reorganization, the title and estate of the railroad being in the company, the company, not the receivers, is the proper party in an action to compel appropriation of lands to which the company has no title and upon which its road has been constructed.

2 PURIOSE OF SEC. 6416, REV. STAT.

The object and purpose of Sec. 6416, Rev. Stat., relating to the filing of a petition for appropriation of land by a railroad company in the probate court, and requiring a description of the lands sought to be appropriated and the use to which they are sought to be applied, evidently, is to compel the railroad to appropriate such an amount of land as the court shall determine necessary for its purposes, but such rule cannot have much force in a case where a railroad company has taken possession of land and operated its road upon it for several years, and both parties seem to be content, so far as the amount of land taken is concerned.

3. JURISDICTIONAL AVERMENTS UNDER SEC. 6448, REV. STAT.

Inasmuch as Sec. 6448, Rev. Stat., requires a petitioner in a proceeding to com pel a corporation to appropriate property in its possession, to which it has no right, legal or equitable, to allege in his petition that the land has been occupied by parties having no legal or equitable title thereto, that notice has been duly served, and the time of limitation under the notice has elapsed, such statements are jurisdictional. The inference of the whole statute is that possession gives no equitable right nor any legal title to the lands.

4. DATE OF COMPENSATION FOR LANDS UNLAWFULLY TAKEN.

A railway company, by taking possession of and constructing its road across the lands of another without appropriating the same, or entering into any written agreement therefor, acquires no legal or equitable title thereto under Sec. 6448, Rev. Stat., authorizing proceedings to compel the appropriation of property so held. The railroad company, in such case, is a trespasser, and, notwithstanding it has held certain lands for fifteen years, the value of the land at the time proceedings were brought, not at the date when it was taken, should govern in estimating damages for its unlawful appropriation.

Affirmed by the Supreme Court, in Railroad Co. v. Perkins, 49 Ohio St., 326, as to date when compensation should be determined.

Railroad Co. v. Perkins.

5. PROPERTY OWNER'S ACTS-ESTOPPEL.

A railroad company having taken possession of lands of another without appropriation or written contract the owner does not lose the remedy afforded him by Sec. 6448, Rev. Stat., relative to requiring appropriation, by standing by and seeing a road constructed and operated on his lands unless he stands by in such manner as to lead the road to believe that it may have the right of way without paying for it and assents to their going on the land.

6. UNRECORDed Map AdmISSIBLE AS EVIDENCE.

An unrecorded map of lands through which a railroad passes, showing the location of the railroad and availability thereof for division into lots, is admissible in an action to compel appropriation, for the purpose of showing in what manner it might be divided and what may be done as to divisions.

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7. DEPOSITIONS-DISCRETION OF TRIAL Court.

It is within the discretion of the court to refuse to grant a motion to continue the hearing of a proceeding to appropriate land a sufficient time to give the railroad company an opportunity to take the deposition of the land owner, who is not present at the trial and is without the county.

HEARD ON ERROR.

CALDWELL J.

This case was commenced in the probate court and taken from there on error to the common pleas, and on error from the common pleas to this court.

The facts are that Jacob Perkins died intestate, having at the time of his death a large tract of land, some six hundred acres or more, lying close to the city of Warren, a part of the land perhaps being inside of the corporate limits, and leaving a son, the defendant in error in this action, J. B. Perkins. In his will he provided that the trustees should take his estate, care for it until his son arrived at a certain age, when it was to be turned over to him; and there was a provision in this instrument that the trustees should not sell or encumber property.

In 1872, while the trustees were in charge of this estate, I think it was in 1872, but I would not be sure, the Painesville and Youngstown Railroad Company, in building its road through between these two cities, crossed this land or that portion of it which is here denominated as about one hundred and sixty-three acres which lies next to the city; built its road from the southeast corner through to the northwest or nearly to the northwest corner, diagonally; built it without any arrangement with these trustees, regarding themselves as having no authority to sell or enter into any arrangement in this matter, as it is stated, and they continued to operate the road after it was constructed for some time and, perhaps in 1878, a mortgage on the road was foreclosed and it was sold, and the company reorganized, taking the road known as the Painesville & Youngstown Railway Company. This company continued to operate until sometime in 1885 or 1886, perhaps, when the company passed into the hands of the defendant. The defendant was at that time in such a condition in regard to this railroad property that it had two trustees appointed to take this property and operate it for the time being.

When the Painesville & Youngstown Railway Company was being closed up there was litigation carried on in Lake county, commenced sometime in 1882 or 1883 or 1884; I have not the exact date, undertaking to marshal all the liens and claims against this Painesville &

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