Railroad Co. v. Hunter.

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."

Again: "The fright of the horse cannot be considered by the jury except as bearing upon the conduct of the motorman after he discovered, or by the use of ordinary care ought to have discovered, such fright."

Those were all refused and exceptions taken separately to each. The request to charge the jury as to the responsibility of the company for causing the fright of the horse by the appearance of the car, or the speed with which the car was run, was all properly refused; because it had no application whatever to the issues made by the pleadings and to be tried by the court and jury.

The petition alleges, after stating the general facts, "that the horse attached to said wagon in which the plaintiff was riding was being driven by a brother of the plaintiff and became frightened and unmanageable by and at the approach of said car of the defendant while some distance therefrom, and at a point on said highway where said street railroad tracks runs along the center of said street; that said horse gave evidence of being frightened at a distance of at least two hundred feet or more from said car as it was approaching, by rearing up on its hind legs, and sprang one way and another, and it then and there sprang on and over said track of said defendant; that said rearing of said horse and its great fright and its crossing said track were all in full view of the servants and agents of the defendant running and operating said car, and at such distance therefrom when the same occurred as to afford abundant time to check the speed and stop the motion of the car before it came in contact with the plaintiff and the wagon in which she was riding as heretofore stated.

It is not charged that the character of this car or its speed caused the fright of the horse. The simple statement is, that the horse was frightened; not that there was any carelessness or negligence on the part of the company in frightening the horse.

The petition then proceeds: "She further says that while she was passing along said highway at the point aforesaid, and as said horse and wagon were crossing said track as above stated, the defendant, through its agents, conducting and operating said car, being in full view of the plaintiff's dangerous position, carelessly and negligently omitted to stop or reduce the speed of said car, and carelessly and negligently omitted to apply the brake to stop or slacken the speed of the same, although they had ample time so to do, after the said servants and agents of the defendant so operating said car discovered, or by the exercise of due diligence and care could have and ought to have discovered, the imminent danger and threatened injury to the plaintiff by omitting so to do."

The complaint in the petition is, that the horse having become frightened, the motorman failed to exercise due care in slacking his car to prevent, as he could, the collision. The requests relating to the responsibility of the company for causing the fright of the horse was outside of the issues made in the pleadings and for that reason undoubtedly were refused by the trial court.

The charge of the court fairly covers every legal proposition involved in the case. In addition thereto the requests that I have named were given, two in behalf of the plaintiff and four in behalf of the defendant. The jury could not have failed to understand the law of the case.

Lorain Circuit Court.

But it is said that the verdict is against the weight of the evidence, and that a new trial should have been granted because of that fact.

It cannot be doubted that if the witnesses that were examined on the part of the defendant in error are to be believed, the evidence was sufficient to establish every material fact essential to a recovery by the defendant in error.

It is true there was a very sharp conflict of testimony produced by the opposing parties. The motorman testifies that he shut off the current fully three hundred feet away from the point of collision; that he had approached within thirty feet of the point of collision before the horse started across the track. Of course if the real fact is as testified by the motorman there was no liability on the part of the company; but the jury, under the circumstances of the case, perhaps influenced somewhat by the fact that the buggy was carried some fifty feet after the collision, before the car was stopped, the force of the collision and other circumstances, accepted the testimony of the plaintiff.

Now we would not hesitate to interfere with a verdict of the jury it not fairly supported by some testimony which it was the province of the jury to pass upon and which they might or might not believe. We think the testimony in this case was of such a nature that we would not be authorized to disturb the verdict of the jury. It there was any wrong done this plaintiff in error it was because of the finding of the jury upon the fact of the case which was their province to pass upon.

At the close of the plaintiff's testimony a motion was made and the court was asked to direct a verdict for the defendant, which the court refused. There was some testimony at that time tending to establish the essential facts necessary for recovery, and the court properly refused to grant that motion.

It is said that the damages were excessive and therefore a new trial should have been granted upon that ground. That depends upon a fact that was in dispute at the trial, to-wit: The defendant in error, a considerable time after this collision and after her injuries were supposed to be fairly cured, tell, and it is said that she then by that fall received the injury from which she is now suffering, and that she is not now suffering from the result of the injury she received at the collision.

It the condition of this defendant in error to-day, and as it appeared upon the trial, as shown by this record, was caused by this collision. and the company were responsible to the full extent for that injury, then these damages were not excessive.

It is said that there was some misconduct of the jury. The allegation of misconduct of the jury was supported by affidavits, controverted by other affidavits; and there was no statement in the record that the bill of exceptions contains all the evidence that was produced and offered upon that motion; hence we cannot say the court erred in refusing to grant a new trial for that reason.

Again: It is said that the special questions submitted to the jury were not answered and there was error in the court receiving the questions as answered; we do not think that that is well taken. The jury did answer the questions. One they did not very definitely answer; it related to the question of time, and they said we are unable to say the exact time, but a very short time. We have given this case as careful a review as we are able to make, and the conclusion is that there is no error apparent upon this record, and the judgment of the court below is affirmed.

Butt v. Worthington.

EVIDENCE-DECEASED PARTIES-WITNESSES.

[Madison Circuit Court.]

Summers, Wilson and Shearer, JJ.

*CHARLES M. BUTT, EXR., ETC. V. MELANCTHON WORTHINGTON. DECEASED PARTY-COMPETENCY OF OTHER WITNESSES.

Where one of the four makers of a note, claiming to be a surety, having paid the balance due after the death of two of such makers, both of whom he alleges were principals as to him, brings an action against the administrator of one of the alleged principals, and issue is joined as to who were principals and who were sureties, the other remaining maker, not being a party to the action, is not incompetent under Sec. 5242, Rev. Stat., to testify as to the relation existing between the deceased and the plaintiff."

ERROR to the court of common pleas of Madison county.

SUMMERS, J.

The only question presented in this case is as to the competency of Delilah Worthington as a witness. Plaintiff in error claims that she was incompetent under the amendment to Sec. 5242, Rev. Stat., which provides that if the case is not within the letter, but is plainly within the reason and spirit of the three preceding sections, the principles shall be applied. We have examined all the cases but think it necessary to notice only two.

In Hubbell v. Hubbell, 22 Ohio St., 208, 221, the court says, "That both the parties disqualified and the adverse party referred to must be parties to the record."

In Cochran v. Almack, 39 Ohio St., 314, 316, the court say: The clause of Sec. 5242, Rev. Stat., under consideration, calls for the application of the principles of the three preceding sections, only when the case is not provided for by either of these sections" and "that if a case is provided for, by the terms of either of the sections, no occasion can arise for invoking the spirit and reason of the statute to supply the omission of its letter or terms."

Delilah Worthington is not a party to the record, and being made competent by the terms of the preceding sections, the latter clause of Sec. 5242, Rev. Stat., has no application.

Finding no error on the record, the judgment will be affirmed.

The judgment of the circuit court in this case was affirmed by the Supreme Court, unreported, in 57 Ohio St., 636.

Lincoln & Lincoln and Howard Black, for plaintiff in error in Supreme Court,

cited:

Parties: Conger v. Chilcote, 42 Iowa, 18; Kohler v. Bernicker, 63 Mo., 369 Burrill's Law Dict.; Secs. 5240, 5241 and 5242, Rev. Stat.; 75 O. L., 654. Generally: Baker v. Jerome, 50 Ohio St., 682 [35 N. E. Rep.. 1113]. Durflinger & Emery, for defendant in error, cited:

Sureties: Oldham v. Broom, 28 Ohio St., 41.

Witnesses: McCague v. Miller, 36 Ohio St., 595; Sessions v. Trevitt, 39 Ohio St., 259; Bell v. Wilson, 17 Ohio St., 640; Thompson v. Thompson, 18 Ohio St., 73; Hubbell v. Hubbell, 22 Ohio St., 208, 221; Baker v. Kellogg, 29 Ohio St., 663; Cochran v. Almack, 39 Ohio St., 314; Ryan v. O'Conner, 41 Ohio St., 368; Wolf v. Powner30 Ohio St., 472; Keyes v. Gore, 42 Ohio St., 211; Greenl. on Ev., Sec. 390; Slaughtner v. Cunningham, 24 Ala. 260 [60 Am. Dec., 463]; Poe v. Dorrah, 20 Ala., 288 [56 Am. Dec., 196]; Riddle v. Dixon, 2 Penn. St., 372 [44 Am. Dec., 207]; Woodward v. Spil. ler, 1 Dana, 180; Hobert v. Hobert, 52 Ga., 321; Jennings v. Coyder, 2 Bush, 322; Bell v. Brewster, 44 Ohio St., 690 [10 N. E. Rep., 679]; 2 Phil. Ev. (Edward's ed.), 628.

Tuscarawas Circuit Court.

SUNDAY CLOSING LAWS-AFFIDAVITS.
[Tuscarawas Circuit Court.]

Pomerene, Adams and Kibler, JJ.

*OWNEY DAUGHERTY V. DENNISON (VIL.).

SUNDAY CLOSING LAWS-AFFIDAVITS MUST SHOW CRIMINAL INTENT. An affidavit charging a person with the violation of a Sunday closing ordinance, is not sufficient unless it charges knowledge and criminal intent. Therefore, an affidavit which simply charges that accused "on the first day of the week, commonly called Sunday, in the village and county aforesaid, allowed a place where intoxicating liquors are on other days sold or exposed for sale (the same not being a regular drug store, nor a place where intoxicating liquors are manufactured) to be open, contrary to the ordinance in such case made and provided," is insufficient to sustain a prosecution. ERROR to the court of common pleas of Tuscarawas county. Healea & Greene, for plaintiff in error.

T. H. Loller, for defendant in error.

KIBLER, J.

The case of Owney Daugherty against the village of Dennison is here on error. Plaintiff in error asks us to reverse the judgment of the mayor and the judgment of the court of common pleas affirming the judgment of the mayor.

This man was arrested on an affidavit for allowing a place to be kept open on Sunday of the description of those that were open on other days of the week for the sale of liquor. There is an ordinance in the village which we think a good, sufficient and valid ordinance, and under this ordinance the affidavit was made and the arrest was made.

The affidavit charges that on December 15, 1895, said day being the first day of the week, commonly called Sunday, at the village and county aforesaid, one Owney Daugherty allowed a place where intoxicating liquors are on other days sold or exposed for sale (the same not being a regular drug store, nor a place where intoxicating liquors are manufactured) to be open, contrary to the ordinance in such case made and provided.

Atter his arrest on this affidavit and warrant issued upon the affidavit, a motion was made by Daugherty to dismiss the proceedings on the grounds that the ordinance of the village by virtue of which this action is brought is null and void and of no effect; and second, the affidavit filed herein and upon which this defendant was arrested is insufficient and does not state any offense, and does not charge this defendant with any violation of any ordinance of said village. This motion was overruled, case was tried, and resulted in the conviction of Daugherty and assessment of a fine. As I stated, we find that this ordinance is not the subject of criticism made in this motion, but is a proper and valid ordi

nance.

The only question to be considered is whether or not this affidavit is sufficient. This affidavit simply says, on this day Daugherty allowed a place where intoxicating liquors are on other days sold or exposed for sale, to be open. It is claimed that this affidavit is insufficient for several reasons, among others, that it does not charge that he knowingly allowed this place to be open. The question we have to consider, and which we think is of some importance here, is whether this affidavit, as it is, is sufficient.

Now, an act may be innocent or may be criminal, and I use the word "criminal" in the broad sense according to the intent in which it is *The judgment of the circuit court in this case was affirmed by the Supreme Court, unreported, 59 Ohio St., 593.

Daugherty v. Dennison.

done. We think that where it is a case where the guilt, or whether the act is innocent or criminal should be stated in the affidavit, that is to say; the crime, or the intent which makes an act, which may be innocent, criminal, should be stated in the affidavit. Now, this affidavit does not show that Daugherty fraudulently or knowingly allowed a place where intoxicating liquors are on other days sold or exposed for sale to be open. We think some word at least ought to be in this affidavit which shows a wrong intent on the part of this man. Now, a man may go into a place where he has been in the habit of selling intoxicating liquors on week days, with an innocent intent, and may go in for a cigar, for instance, and leaving the door open a little while, and may go in for a number of proper reasons. Therefore, by merely having it open a short time is not an offense under this ordinance, and we think the word "unlawfully" or "knowingly" or something of that description ought to have been in this affidavit in order to show that this opening was a wrongful opening. Now, although we do not hold that the strictness that is used in indictments ought to be expected or required in affidavits of this description, yet, as I have said, there ought to be something in the affidavit to show that the act was done with a wrongful intent.

In the Ohio Criminal Code, by Wilson, page 340, the charge is stated in this way: "Being the first day of the week, commonly called Sunday, did unlawfully and knowingly allow to remain open, a certain room, said room being then and there and theretofore a place where on other days of the week than the first, commonly called Sunday, were there and therein sold and exposed for sale, by the said E. F., intoxicating liquors, to-wit: brandy, whisky, gin, ale, beer and wine, the said room not being then and there a regular drug store."

Now, there is the expression used by this author in this form, "did unlawfully and knowingly." Now, we, of course, have not overlooked the statute in respect to criminal proceedings. "No indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings be stayed, arrested, or in any manner affected by the omission of the words 'with force and arms,' or any words of similar import; nor for the omission of the words 'as appears by the record;' nor for omitting to state the time at which the offense was committed, in any case in which time is not of the essence of the offense; nor for stating the time imperfectly; nor for want of statement of the value or price of any matter or thing, or the amount of damages or injury, is not of the essence of the offense; nor for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment; nor that dates and numbers are represented by figures; nor for any omission to allege that the grand jurors were impaneled, sworn, or charged; nor for any surplusage, or repugnant allegation, where there is sufficient matter alleged to indicate the crime and person charged; nor for want of averment of any matter not necessary to be proved; nor for any other detect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits." I say, we had that in view, and having that in view and with the views I have expressed, we are constrained to conclude that this transaction should not have been commenced in this way and that the judgment of the mayor, and the judgment of the court of common pleas, affirming the judgment of the mayor, should be reversed, and it is so ordered and prisoner discharged.