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Lorain Circuit Court.

As I have said, the question is one not without difficulty, because, if you give the literal and more common meaning to the word "construction," it might be limited to the original building of the road, but it is also a word of more general meaning and we think, taking the two sections, 3277 and 3278, and reading them in connection with this section, that it was not intended by the legislature to limit this word "construction" to the original building of the road, and that it may fairly be held to give the right to divert a road from its location whenever such a change as this authorized by statute renders such a diverrion of the road necessary, and we think the record in this case clearly shows that it was necessary to change the location of the road at that point, in consequence of the change in the grade of the railroad.

For that reason and for the reason that we think the testimony shows no damage whatever was sustained by the commissioners representing the public, but that, in fact, the road is better for the public as changed than it was originally, we think the court did not err in its decision and that judgment is affirmed.

ERROR-GUARDIAN AND WARD.

Hamilton Circuit Court, 1901.]

Swing, Giffen and Jelke, JJ.

E. P. BRADSTREET V. Asa R. METTLER.

NECESSARY PARTY TO PROCEEDINGS IN ERROR.

Judgment having been rendered in favor of the guardian of an imbecile in an action against the latter, the guardian is a necessary party to a proceeding to reverse the judgment, and where the time has passed in which such proceeding to reverse can be prosecuted, the proceeding cannot be brought against the administrator of such ward upon his decease.

HEARD ON ERROR.

E. P. Bradstreet, for plaintiff in error.
Louis Reemelin, contra.

SWING, J.

An action was brought in the court of common pleas against Asa R. Mettler, and during the pendency of the action in that court said Mettler was adjudged an imbecile by the probate court, and one Marvin was appointed his guardian. Thereupon said Marvin was made a defendant in said action, and filed his answer as such. After this, judgment was rendered in favor of the defendants. The action in this court was brought against Asa R. Mettler. After the action was brought in this court said Mettler died. It is now suggested to this court that said Mettler is deceased, and permission is asked to make his administrator a party defendant.

It seems to us that this request should be denied. The action in this court should have been brought against Marvin, guardian. The judgment below was in favor of Marvin, guardian. To reverse that

Bradstreet v. Mettles.

judgment Marvin, guardian, was a necessary party but he has not been made a party, and the time has long since gone by, and it wouldbe unavailing to now permit this cause to proceed against Mettler's adminis trator when the action should have been prosecuted against Mettler's guardian.

NOTARY PUBLIC SUBPOENA,

[Clark Circuit Court, 1896.]

WOODS V. ALTSCHUL.

MEMORANDUM OF DECISION.

A notary public has power to issue a subpoena duces tecum and a failure to obey it constitutes contempt of court.

NEGLIGENCE-DAMAGES.

[Lucas Circuit Court, September Term, 1901.j

Haynes, Hull and Parker, JJ.

WHEELING & Lake ERIE R. R. Co. v. FREDERICK A. SUHRWIAR. 1. APPROACHING RAILROAD CROSSING-NO REQUIREMENT TO STOP BESIDES LOOKING AND LISTENING.

Under the rule in Ohio, a person in the full enjoyment of his faculties, before attempting to pass over a known railroad crossing, unless there is some reasonable excuse for not doing so, must look and listen for approaching trains, but it is not the rule of law in Ohio that one driving on a highway and approaching a railroad crossing should stop and look and listen. It may, however, be a question for the jury to determine whether under the particular circumstances of the case, ordinary care would require a person approaching a railroad crossing to stop as well as to look and listen for trains.

2 CONDUCT IN FACE of Danger.

Whether a person, riding on a lumber wagon, on a board extending between the axles, sitting behind the driver but in front of the rear axle, having looked and listened before atttempting to cross a railroad track with which he was familiar, was negligent in remaining on the wagon and attempting to cross in front of an engine rapidly approaching, without warning or signal, the view of which was obstructed, until the horse's forefeet were upon the track, and not more than sixteen feet from such person, and the engine was not more than two hundred feet away, is a question for the jury. The foregoing facts, together with proof that the person injured warned the driver of the approaching engine, and that plaintiff actually did get off the wagon and ran ahead several feet beyond the track, but was injured by the train striking the rear wheels and throwing them against him, are not sufficient to establish negligence as a matter of law.

3. GENERAL RULE as to CONDUCT IN FACE OF Danger.

The conduct of a man under such circumstances, or who finds himself before a quickly approaching train, must be considered in the light of the peril before him, of the state of mind that he must have been in, having not more than seven seconds at the most to determine what course to pursue to get out of danger, the horse walking slowly and the lines and whip in another man's hands, and the danger of getting off the wagon in view of the fact that the horse was likely to violently start, and if he did as man of ordinary care and prudence would have done, he is not guilty of contributory negligence, although he may not have done what was the best thing to do at the time.

Lucas Circuit Court.

4. RULE OF Imputed NegliGENCE NOT Applicable in OHIO.

Where a person is injured while riding on a wagon with another who attempts to cross a railroad in the face of an approaching train, and is wrecked, the negligence of the driver can not be imputed to such other person.

5. Verdict NOT EXCESSIVE.

Where a man thirty one years of age capable of earning $700 a year had both bones of his leg broken just above the ankle and shattered so that they did not unite for a long time, and from which he suffered severe pain and is incapacitated from performing manual labor requiring him to stand, and such injuries produce paralysis of the bladder and rectum, a verdict of $10,000 is not excessive, especially where the injuries are permanent, and notwithstanding the fact that in a previous trial within a few months after the injury occurred and before his condition was fully developed or the results thereof could be ascertained with practical certainty, a jury gave him a verdict for only $5,000.

HEARD ON ERROR.

Seney & Johnson, for defendant in error.

Doyle & Lewis, and C. A. Seiders, for plaintiff in error:

There was certainly ample opportunity for seeing and hearing the engine, and when we apply the well known rule so of law as laid down by the Supreme Court: Cleveland, C. C. & I. Ry. Co. v. Elliott, 28 Ohio St. 340, 352, 355; and Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66, 71, 72, 74; Meek v. Pennsylvania Co., 38 Ohio St. 632, 637; Wabash R. R. Co. v. Skiles, 64 Ohio St. 458 [60 N. E. Rep. 576].

That we have a right to do this and that he cannot hide his own contributory negligence behind the claim that his brother drove onto the track, is clearly shown by the following cases: Crescent (Twp.) v. Anderson, 8 Atl. Rep. 379 [114 Pa. 643]; Dean v. Railroad Co., 18 Atl. Rep. 718 [129 Pa. 514; 6 L. R. A. 143; 15 Am. St. Rep. 733]: Bricknell v. Railroad Co., 24 N. E. Rep. 449 [120 N. Y. 290; 17 Am. St. Rep. 748]; Galveston, H. & S. A. Ry. Co. v. Kutac, 11 S. W. Rep. 127 [72 Tex. 643]; Griffith v. Railroad Co. 44 Fed. Rep. 575; Toledo & O. C. Ry. Co. v. Eatherton, 11 Circ. Dec. 253 (20 R. 297).

We fail to see why the refusal to give the tenth request was, and is not error. The general charge is full of abstract propositions, which has been condemned by the Supreme Court over and over. Marietta & Cincinnati Railroad Co. v. Picksley, 24 Ohio St. 654; Lake Shore & M. S. Ry. Co. v. Geiger, 4 Circ. Dec. 307 (8 R. 41).

Where propositions vital to the plaintiff's case were conceded, final judgment was entered by the Supreme Court: Toledo & O. C. Ry. Co. v. Bowler, 63 Ohio St, 274, 289 [58 N. E. Rep. 813].

HULL, J.

This is the second time that this case has been in this court. A judgment in favor of the plaintiff below for $5,000 was affirmed at a former term of this court, Wheeling & Lake Erie Ry. Co. v. Suhrwiar, 10 Circ. Dec. 715 (20 R. 558), and the case was thereafter taken to the Supreme Court, and was by the Supreme Court reversed on the ground that the trial court had erred in refusing to give an instruction requested by the defendant below. The case was tried again, and a verdict returned for $10,000, upon which judgment was entered by the court of common pleas, and it is this judgment which is sought to be reversed in this proceeding in error.

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Railroad Co. v. Suhrwiar.

The general grounds of error complained of, or claimed by the plaintiff in error, are that the court should have directed a verdict for the defendant below; that the verdict was against the weight of the evidence, and not sustained by sufficient evidence; that the court erred in its charge to the jury and in its refusal to give certain requests of the defendant below; and that the damages are excessive, and that the judgment should be reversed on that ground.

The action was one for personal injuries which the defendant in error claimed he sustained on account of the negligence of the plaintiff in error, in running a locomotive at a highway crossing in the city of Toledo. On the morning of July 20, 1899, a little before six o'clock in the morning, standard time, the plaintiff with his brother was riding in a lumber wagon, as it is called, there being nothing on the running part of the wagon except a long board reaching from one axle to the other. The brother was driving the horse, there being only one horse hitched to the wagon. The plaintiff below was sitting behind his brother on this board, perhaps three or four feet behind. The defendant in error had gotten on the wagon with his brother some five hundred feet west of the railroad crossing, on Buckeye street, the crossing of Buckeye street, with the Wheeling & Lake Erie railroad being north of their depot in Toledo, perhaps a mile north-some distance at least. He got on the wagon, about five hundred feet west of the crossing, and his claim is, and it is the testimony of his brother, that the view was so obstructed at the crossing that they were unable to see approaching trains until they were very near to the main track. And the plaintiff below claims that he looked and listened, and that his brother did likewise, as they were approaching the crossing, and neither saw nor heard the locomotive. The plaintiff below was sitting with his face towards the south, or toward the depot, and his brother was sitting with his face toward the north, both sitting on this plank which ran lengthwise of the wagon; and he claims that he was unable to discover, or to see or hear any train or locomotive as it approached, until the horse's front feet were on the main track-there being at this crossing a main track and two side tracks—and just at this time, the plaintiff below claims, a locomotive appeared behind these obstructions, running at the rate of from twenty to thirty miles an hour; Suhrwiar at that time being, as he claimed, from fourteen to sixteen feet from the main track, the horse's forefeet, as stated, being on the track. He testifies that he remained on the board until he was nearly to the railroad track, and then jumped off, jumping forward-running and jumping, probably—so that he cleared the track, but when he was beyond and east of the track, the locomotive struck the hind wheels of the wagon, and the hind part of the wagon was broken off, and one of the wheels was thrown upon his back, from which he sustained serious injuries.

The plaintiff below, Frederick Suhrwiar, is corroborated in his testimony by his brother John, who was with him, and to some extent by one or two witnesses who were in the neighborhood, and either heard the crash at the time of the collision, or saw something of it. Both Fred and John Suhrwiar testify that no signal, either by bell or whistle, was given before the locomotive was seen.

At the close of the testimony of the plaintiff below the railroad company moved the court to instruct the jury to return a verdict in favor of the defendant below, which was refused and overruled by the court; and this, it is claimed, was error. After the overruling of the

Lucas Circuit Court.

motion the railroad company declined to offer any testimony, and the case went to the jury upon the testimony offered by the plaintfff alone. The jury was charged by the court, and returned a verdict for $10,000.

It is claimed by the railroad company that under the undisputed facts in this case, and upon the testimony of the plaintiff himself, he was not entitled to recover. The claim is, that according to his own testimony, he was guilty of contributory negligence.

According to the testimony, no signal was given on the locomotive, either by bell or whistle, until almost at the very instant that the accident occurred; but the claim of the railroad company is, that notwithstanding the evidence showed negligence on its part, Suhrwiar himself was guilty of contributory negligence, and therefore he cannot recover. It is claimed that under his testimony he saw the locomotive approaching when he was from fourteen to sixteen feet from the track, the horse being at this time on a walk, going from a mile and a half to two miles an hour, and it is urged that he then, having an opportunity to get off the wagon, not availing himself of it, but staying on, and attempting to cross the track, he thereby took his own chances as to injury, and that his conduct and acts upon the occasion in question were in law contributory negligence, and bar a recovery.

No testimony having been offered by the defendant, the question is squarely presented to the court, as a question of law, whether the facts were such that the court can say, as a matter of law, that the jury were not warranted in finding that the defeudant in error was not guilty of negligence contributing to his own injury.

The engine was coming backward, the tender being ahead, with some considerable coal oiled up upon it. There was no man on the tender or in sight on the locomotive keeping a lookout. Suhrwiar was familiar with this crossing. He lived in that vicinity; he crossed it a good many times; and on this morning in question he had before that time gone across four times, and had gone over it but a short time before the accident, for the purpose of putting his cows in a pasture, and had just done this when he got on the wagon with his brother to return. He knew that trains and locomotives passed about this time of day rather frequently; as stated, the view was obstructed as the crossing was approached from the west. There was a coal shed of considerable height -eleven feet high-on one side; there was a wood shed or wood house which also obstructed the view to some extent; there were high fences on that side of the track and there was a car standing near the crossing which also obstructed the view, as the crossing was approached. When the case was here before, the record contained evidence, as it does now, of these obstructions, but it did not contain the positive statement of the plaintiff below, as it does now, that he saw the locomotive when within from fourteen to sixteen feet of the crossing. We held at the former hearing, in the absence of this positive testimony of the plaintiff below, that the obstructions were of such a character and that the testimony of the plaintiff and his brother was such as to their keeping a lookout, that it was a fair question for the jury as to whether plaintiff exercised ordinary care in approaching the crossing, in view of all the circumstances. It is now urged by counsel for plaintiff in error that under this record, in view of this positive testimony as to plaintiff below seeing the train at the distance mentioned, he must be held to have been guilty of contributory negligence, as it is argued that there is no longer any room for inference

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