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Fairfield Circuit Court.

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acres of land. And the court finds that in justice and equity said plaintiffs, Voughts', should pay their own costs therein, including costs heretofore adjudged against them in this case, and that the heirs of Richard Hooker, Sr., should pay the residue of the costs herein.

Wherefore it is adjudged and decreed by the court here that said plaintiffs, Voughts', have no right, title, interest or estate, legal or equitable, in said eight acres of land in dispute in this action, and that all their pleadings, claims and demands therefor are dismissed at their costs, and that said Michael S. Vought, personally, and as administrator of the estate of John S. Vought, pay all the costs made by the plaintiffs herein, including the costs heretofore adjudged against said plaintiffs herein and in all taxed at $——, and execution is awarded to collect the same as provided by law.

And it is further adjudged and decreed that the cross-petition and the amendments thereto and of; and all other claims and demands in this action on appeal by Carrie S. Hooker and George W. Hooker, in respect to said eight acres in dispute herein, and the correction of their deeds so as to include the same, and in respect to rents and profits, use and occupation of said eight acres, are each and all found to be unsustained and are dismissed without costs. And it is further adjudged and decreed that said Richard, Sr., at the time of his death, was the owner in fee of said eight acres in dispute herein, and that upon his demise his said legal heirs became and now are the joint owners in fee thereof subject to the dower estate of his said widow, Phoebe Hooker, with other legal liens, and the said estate of said heirs therein, subject to the dower estate of said widow therein, is hereby adjudged and decreed to be and the same is quieted, and all parties herein are commanded and er joined to in no way or manner disturb or interfere with the same or the ownership thereof; and upon considerations of justice and equity it is further ordered and decreed that the said heirs of said Richard Hooker, Sr., deceased, in equal proportions, pay all the costs of said defendants made in this case and not adjudged against plaintiffs taxed at $- and execution is awarded according to law to collect the same. And thereupon at the time said plaintiffs, Voughts', and said crosspetitioners Carrie S. and George W. Hooker then and there excepted to all said findings of law and facts and to all said judgments and decrees adverse to them, and asked the same to be noted of record, and forty days was allowed in which to prepare and have bill of exceptions herein allowed, signed and sealed by said cross-petitioners, Carrie S. and George W. Hooker.

And on September 11, 1891, the following entry was put upon the journal, to-wit: Today came the parties with their attorneys, whereupon the motion of Carrie S. Hooker and George W. Hooker for a new trial and to vacate and set aside the findings, judgments and decrees herein, for the causes in said motion stated, came on to be heard and was argued by counsel. On consideration whereof the court found said motion not well taken, and overruled the same, to which ruling and opinions said defendants Carrie S. Hooker and George W. Hooker at the time excepted, and thereupon on their motion, time, to-wit: forty days in which to prepare and have allowed, signed and sealed their bill of exceptions in the above case was given and granted said Carrie S. Hooker and George W. Hooker, and the journal ordered kept open for such purpose.

Railroad Co. v. Hunter.

NEGLIGENCE-STREET RAILWAYS.

[Lorain Circuit Court, October 22, 1898.]

Caldwell, Hale and Marvin, JJ.

*CLEVELAND AND ELYRIA ELECTRIC Railroad Co. v. HUNTER.

1. EVIDENCE-Statements of Non-Expert Witnesses.

Statements of witnesses as to the time in which electric cars have been stopped, though at other times and other parts of the line, are statments of fact and are competent as evidence bearing on the question, in an action for personal injuries resulting from a collision between an electric car and a horse and buggy, as to the time in which the car could have stopped at the time of the accident.

2. TESTIMONY OF PASSENgers as to Speed-Competent.

It does not require an expert to determine, when riding in a car, whether the speed has been slackened. Therefore, the testimony of passengers upon an electric car that just prior to an accident the car was running at its usual speed, and that there was no slackening of speed until the collision occurred, was competent.

INCOMPETENT TESTIMONY-NOT PREJUDICIAL.

Where it appears, in such case, that at the time the motorman noticed the peril of the plaintiff, he had ample time to stop the car, the testimony referred to in the preceding paragraphs, whether competent or incompetent, was not prejudicial to defendant.

4. HIGHWAYS-RIGHTS OF Street Railways and Vehicles.

An instruction that: “The object to be accomplished by the defendant in the construction and operation of its road on that highway was to furnish rapid transit for the people living along the highway and for the general public by means of cars rapidly propelled by electricity; such use of the highway is necessarily dangerous to persons traveling thereon in vehicles drawn by horses, and as such a use of the highway is held to be reasonable and lawful, people traveling thereon in vehicles drawn by horses must exercise care commensurate with such increased, but reasonable and lawful dangers. The right of the defendant to run its car and of the plaintiff to ride in the wagon on that highway were equal. Each assumed the dangers of the other's reasonable use of the highway, and was bound to use ordinary and reasonable care to avoid injuring the other and being injured by the other," while entirely proper in defining the rights of the parties in the highway as a whole was improper.

IMPROPER TO GIVE IRRELEVANT CHARGE.

Instructing the jury that a street railway company is not responsible for injuries caused by the fright of a horse arising from the ordinary use of its car, where there was no evidence tending to show that there was anything in the appearance of the car which would tend to frighten a horse of ordinary gentleness, and the instruction could have no application to the issues made by the pleadings, would have been improper.

SAME-NEGLIGENCE NOT Charged.

An instruction that "there is no evidence tending to show that defendant was guilty of negligence in any of the respects charged in plaintiff's petition in running its car at the time and place and under the circumstances of this case prior to the time that the motorman discovered or by the use of ordinary care might have discovered the fright of the horse," where the negligence was subsequent thereto, is within the rule stated in the preceding paragraph.

The judgment of the circuit court in this case was affirmed by the Supreme Court, unreported, in 60 Ohio St., 634.

49 O. C. D. Vol. 18

Lorain Circuit Court.

7. MISCONDUCT of Jury-Evidence-Bill of EXCEPTIONS.

Where evidence, in the form of affidavits in support of an allegation of misconduct of the jury is controverted by other evidence, also in the form of affidavits, and it does not appear from the record that bill of exceptions contains all the evidence upon that question, a reviewing court cannot say that the trial court erred in not granting a new trial for that reason.

8. ERRORS IN Charge Cured BY SUBSEQUENT CHARGES.

A judgment will not be reversed because a charge to the jury too prominently set forth certain facts favorable to the plaintiff and omitted those favorable to defendant, where such omission was offset by special requests given on behalf of the latter.

9. EXCEPTION TO SPECIAL REQUEST MUST BE NOTED.

Unless exception was taken and is noted upon the record, the circuit court cannot say that the giving of a particular special request was erroneous. HEARD ON ERROR.

W. W. Boynton and P. H. Boynton, for defendant in error. Wilcox, Collister, Hogan & Parmelee and E. G. Johnson, for plaintiff in error.

HALE, J.

Prior to July, 1896, the plaintiff in error had constructed a street railroad between the city of Cleveland and the city of Elyria, passing through the township of Ridgeville, and at that time and ever since has been operating upon that road cars propelled by electric motors.

On July 19, 1896, the defendant in error was on her way from Elyria to Ridgeville, traveling in the highway, in a wagon drawn by one horse driven by her brother, in the center of which highway was located the track of the railway company. In the eastern limits of the city of Elyria there was a collision between the wagon in which the plaintif was traveling and the car passing westward on the railroad track. In this collision the wagon was demolished, overturned, the defendant in error thrown out, and sustained very serious injuries. She prosecuted, in the court of common pleas, her action to recover of the plaintiff in error compensation for the injuries thus sustained, claiming that her injuries were caused by the carelessness and negligence of the railway company, through its agents in running and managing the car that collided with the wagon. A more definite reference to the specific allegations of negligence will be referred to as we consider the requests that were made by defendants of the court to charge the jury.

The action was tried in the court below, resulting in a verdict for the defendant in error in the sum of ten thousand dollars. A motion for a new trial was overruled and a judgment rendered on that verdict.

The entire proceedings had in the court below are brought before this court for review by a bill of exceptions, covering something more than five hundred pages. Various errors are assigned to the rulings made by the court on the admission and exclusion of the evidence. It is only necessary to refer to a few of those rulings.

First, the defendant in error was permitted to give to the jury the statement of witnesses as to the time in which cars had been stopped upon this railroad at other times and at a different place from the place of this collision, for the purpose of showing within what time the car could have been stopped at this time.

One of the material allegations of negligence was, that the motorman was negligent and careless in omitting to check the speed of the

Railroad Co. v. Hunter.

train after he had observed or by reasonable care could have known the peril in which the defendant in error was placed. It became, therefore, material to determine within what time the car could be stopped. This testimony we do not regard as calling for an opinion of witnesses which they could not express as to the time within which the car could be stopped. It was the statement of a fact as to the time within which cars had actually been stopped. The majority of the court are very clearly of the opinion that such testimony was competent. For myself I see some objection to the testimony.

In order to have it a proper measure to apply to the case it necessarily involved various items, the weight of the car, condition of the motor, the grade of the track, the condition of the track, that would raise independent issues in the case. But, as I say, we hold the testimony to be competent.

The testimony in the case, both on the part of the plaintiff and defendant, agree upon the proposition that a car could be stopped within 100 to 125 feet, running at the speed at which this car was running. could have been stopped within a distance not to exceed 125 feet.

It

The jury, in a special finding, found at the time the horse started to cross the track the car was 160 feet away from the point of collision.

The finding of the jury, therefore, shows that at the time the motorman should have noticed the peril of this defendant in error he had ample time to stop the car, and, therefore, that this testimony, whether competent or incompetent, was without any prejudice to the plaintif in error, which affected the verdict.

A number of witnesses, some of whom were upon the car, and others who observed the car, were permitted to testify as to the speed that this car was running just before the accident. All of those witnesses, except two, testified only to the fact that just prior to the accident the car was running at its usual speed and that there was no slacking of the speed until the collision occurred. That testimony certainly was unobjectionable. It does not take an expert to determine, when riding in a car, whether the speed has been slackened or otherwise.

Two witnesses, Kuehne and Nicholls, were permitted to give opinions as to the speed that this car was running.

Nicholls testified, in his opinion, it was moving from sixteen to eighteen miles per hour. Kuehne thought it was runnning at the rate of twenty miles per hour.

These witnesses failed to show much knowledge on the subject, entitling them to speak as experts and to give opinions.

The defendant's motorman testified that this car was running from fifteen to sixteen miles per hour. Nicholls testified it was running from sixteen to eighteen. We do not think that the difference between the two statements is sufficient to reverse the judgment. And as to both of those witnesses we are inclined to say that they showed such knowledge and such experience as to make the testimony barely competent, but that its weight was of little value.

The testimony given by the physicians in answer to the hypothetical questions is also challenged and exceptions were taken. We see no objection to that testimony.

Wasson and Christy were examined on the part of the plaintiff in error as expert witnesses. Certain questions were put to each of them which the court did not permit to be answered. In that we think there

Lorain Circuit Court.

was no error. Both of those witnesses gave to the jury all the information that was needed concerning the time in which a car could be stopped, the methods of stopping a car, the manner of applying brakes and educated the jury to the full extent that was necessary and competent.

So far as the rulings upon the questions of evidence, we are of the opinion that there was no error committed by the trial court.

At the close of the testimony the case was argued, and it is claimed that there was misconduct on the part of the counsel for the defendant in error. Perhaps the argument of counsel extended to the full extent that should be authorized, but on interruption by counsel for the plaintiff in error, the offending counsel very gracefully came down, and we do not see that any substantial injury was done to the case of the railway company by the remarks they are complaining of.

At the close of the testimony the court was asked by defendant in error to instruct the jury in two special requests, which were given, the second of which the plaintiff in error complains should not have been given. I find no exception noted upon the record by plaintiff in error to the giving of this request, therefore we cannot say that it was error, but independent of that, we think the request was one that the court might well have given.

Complaint is made that it made too prominent certain facts favorable to the defendant in error and omitted those favorable to the plaintiff in error. But that was fairly offset by the requests that they made on the other side.

The plaintiff in error then requested the court in a large number of requests to charge the jury, four of which were given. These requests called the attention of the court to specific claims made by the plaintiff in error. The fifth request was refused and exception taken, it was in these words: "The object to be accomplished by the defendant in the construction and operation of its road on that highway was to furnish rapid transit for the people living along the highway and for the general public by means of cars rapidly propelled by electricity; such use of the highway is necessarily dangerous to persons traveling thereon in vehicles drawn by horses, and as such a use of the highway is held to be reasonable and lawful, people traveling thereon in vehicles drawn by horses must exercise care commensurate with such increased, but reasonable and lawful dangers. The right of the defendant to run its car and of the plaintiff to ride in the wagon on that highway were equal. Each assumed the dangers of the other's reasonable use of the highway, and was bound to use ordinary and reasonable care to avoid injuring the other and being injured by the other."

That part of the charge defining the rights of the parties in the highway was entirely proper and would have been entirely proper for the court to have given in the charge to the jury so that they could have understood the rights of each in the highway; but the request as a whole we think the court was justified in refusing.

There are a number of requests which I will consider together. "The defendant was not responsible for any injury to the plaintiff caused by the fright of the horse arising from the ordinary use and operation of its car." There is no evidence tending to show that there was anything in the appearance of the car in question that would have a tendency to frighten a horse of ordinary gentleness. Another: "There is no evidence tending to show that defendant was guilty of negligence in any of the respects charged in plaintiff's petition in running its car at the

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