Packard v. Traction Co.

tiff. The question is, whether, under the evidence as offered by the plaintiff alone, the jury was justified in finding a verdict against him.

The plaintiff's claim in his petition is, in substance, that about 6:30 o'clock in the morning of the day in question, the defendant stopped one of its cars near the crossing of the Lake Shore & Michigan Southern Railway track, and that the plaintiff attempted to get onto the car after it had stopped; that he took hold of the handle on one side of the car with his left hand, and got onto the step with one foot, and while he was about in that position, and while he was trying to get into the car, aud before he had gotten in or had time to get in, the conductor negligently signaled the car to go ahead, and the motorman started the car with a sudden jerk, and the plaintiff was thrown off and dragged for some distance, and injured. He claims that the traction company was negligent in the conduct of its motorman and conductor at the time in question, and that the finding of the jury is against the evidence. His claim is that under the undisputed facts of the case he is entitled to recover. On the other hand, the claim of the traction company is, that the question as to whether the motorman and conductor exercised ordinary care at the time in question was a proper question for the jury, was fairly submitted to the jury, and that their finding cannot be disturbed.

It appears from the record that the plaintiff lived very near the crossing of the tracks of the traction company with the Lake Shore & Michigan Southern Railway Company, and that he had for some time been in the habit of getting on the car near this crossing, a statute of the state (Sec. 3443-6, Rev. Stat.) requiring the street railway company to stop its cars not less than ten nor more than fifty feet from the railroad crossing. The plaintiff had been in the habit of taking advantage of this stop to get on the car and go down town to his work, and he testifies that on the morning in question he left his house about the usual time to go to work, and that he stood in the street waiting for the car for perhaps ten or fifteen minutes. He stood first at the edge of the curb, and finally, he says, he walked out in the street within, perhaps, three or four feet of the railway track. Finally a car approached. He made no signal to the car that he desired to take passage thereon, knowing, of course, that the car was compelled to stop at this point. The car stopped within the short distance fixed by the statute from the steam railway track. The conductor went ahead, as he was in the habit of doing, to comply with the statute, to look out for approaching trains. About the time the conductor reached the steam railroad track the plaintiff took hold of the handle of the car, and put his left foot on the step or running board to get on. Just at this time the conductor, from the steam railway crossing, signaled the motorman to go ahead. The motorman, without looking around or taking any notice of what was taking place at the car, started the car in the sudden way that electric cars are usually started, and the plaintiff 's foot was thrown off the running bcard, and he held on to the handle, and was dragged across the steam railway track, and was finally assisted into the car by a passenger. He went down town to his work, but claims that he suffered considerable injury from the accident, and on account of what occurred there. There is no eviderce that the conductor or the motorman had any actual notice that he intended to get on the car. The plaintiff testified that he was within three or four feet of the track as the car approached. His wife testified that she looked out of the window, and when she last saw him he was standing near the telegraph pole, which would be at the curb. She was then

Lucas Circuit Court.

called away for a moment, and when she next looked out of the window, he was being dragged, as she says, by the street car. Whether he was standing within three or four feet of the railroad track as the car approached, or was standing back by the curb, is not entirely clear from the testimony of these two witnesses-the plaintiff and his wife. Their testimony may have been regarded by the jury as contradictory. In any event, he made no sigual, and gave no sign that he desired to take passage upon this car; and, as the court charged the jury, there was no evidence that either the motorman or the conductor in fact knew that he desired to get on the car. The plaintiff testified that he had been in the habit of getting on at this point, and that others had.

The court submitted the question of the defendant's alleged negligence to the jury as a question of fact to be determined by them from the evidence, and said to the jury:

"On the other hand, if you find from all the facts in the case that the conductor and the motorman, acting with that care, ordinarily would ascertain (and which they might have ascertained by the position of the plaintiff, taken in connection with all the other circumstances in the case that have been testified to), that he desired to become a passenger on the car, then your finding would be that they were chargeable with notice, and the duty that they should discharge would immediately attach to them, and must be fulfilled and discharged."

And the court in the preceding paragraph said this to the jury:

"You will take all the facts and circumstances in the case and consider everything that has been brought out in the evidence here, and determine the question whether the employes in charge of this car, exercising ordinary care, must have known that the plaintiff desired to become a passenger upon this car or not. It, in the exercise of ordinary care they would not have known, there being no testimony here directly that notice was given to them by the plaintiff, in that case the plaintiff would not be entitled to recover."

We find that the charge as a whole fairly submitted to the jury the question as to whether the defendant did exercise ordinary care or not.

We are of the opinion that the motorman and the conductor were not required, as a matter of law, to look before the car was started at this point to ascertain whether any one was getting on the car, or was about to get on the car. Whether ordinary care required them to look, or whether by the exercise of ordinary care they would have known that plaintiff was about to get on, is a question that the court submitted to the jury. The car at this point was stopped, not for the purpose of taking on passengers, but was stopped because by statute it was required to stop, while an employe went ahead and looked out for approaching trains. The stop was a very short one, and it is a matter of common knowledge, that such stops are short. The car was stopped the statutory distance from the steam railroad track. The conductor had been standing at the front end of the car with the motorman, and as soon as the car stopped he ran ahead to the steam railroad track, and looked up and down the track as quickly as he could, and, so far, as the evidence discloses, without turning his face in the direction of the car, gave the signal to the motorman to come ahead. The motorman, in the discharge of his duty after the conductor left the car, kept his eyes ahead, looking for the signal which the conductor was to give him, which would be either a signal to come ahead or a signal of panger; to remain where he was.

Packard v. Traction Co.

It was the duty of the conductor and the motorman at this place, under these circumstances, to give their attention to the crossing and to the approach of trains. The object and purpose of the statute in requiring these precautions is to protect the lives of the passengers who may be on the car, and to protect them from injury, and the conductor and motorman were required to use care, and to use their faculties, in obeying this statutory injunction; but they were not required to keep the car standing still any longer than was necessary to make the observation that the statute required.

The plaintiff knew all this: that this stop was made only for the purpose of complying with the statute, that it would be only short, and that the conductor and motorman were engaged in the performance of their duties in complying with the statute. Those were things for him to take into consideration when he attempted to get upon the car at this point. Instead of getting on the car immediately after it stopped, it seems, he followed another passenger into the seat, there being another passenger ahead of him, and he undertook to get into the same seat with this passenger. He was thus delayed in getting on the car until the start was made which threw him off.

This question of negligence went to the jury, to be decided in the light of all the surrounding facts and circumstances.

Although some objection is now made to the charge, no exception was taken to it at the trial by either side, either general or special, and unless the charge was of such a character that we could say that the plaintiff was deprived of a 'air trial, we could not reverse the case on account of any technical errors that might exist in it. But upon an examination of the charge, we are of the opinion that the court stated the law correctly to the jury, and that there were no errors in the instructions given, and that the plaintiff had his case fairly submitted to the jury, both as to the questions of fact and as to the questions of law. Whether ordinary care was used or not, by the defendant, was a proper question to submit to the jury, and we are of the opinion that the jury were warranted in finding that the defendant was not guilty of negli gence. The case comes before us on review, not as triers of the fact, but to determine whether, as a matter of law, the verdict is sustained by sufficient evidence. In our judgment it is, and for that reason the judg ment of the court of common pleas will be affirmed.

ATTACHMENT-STATUTES.

[Lucas (6th) Circuit Court, September Term, 1901.]

Haynes, Hull an Parker, JJ.

EDWARD V. COLLINS V. BINGHAM BROTHERS.

1. COURTS WILL NOT PASS UPON CONSTITUTIONALITY OF LAWS UNLESS NECES

SARY.

Courts will not pass upon the constitutionality of laws unless necessary to do so in the decision of cases before them. Therefore, the circuit court will refuse in this case to pass upon the constitutionality of Secs. 582, 583 and 584, Rev. Stat., as amended April 19, 1898, 93 O. L. 316, relating to the subject of attachments, in a county other than Cuyahoga or Franklin.

Lucas Circuit Court.

. Repealing Clause Falls WITH AMENDMENT. Where an act repealing another act and providing a substitute therefor is found invalid, the repealing clause must also be found invalid, unless it shall appear that the legislature would have passed the repealing clause in any event. The legislature by the act of April 19, 1898, 93 O. L. 316, amending Sec. 384, Rev. Stat., relating to attachments before justices by limiting the jurisdiction of justices in certain counties named without otherwise changing the law, did not intend to destroy the law upon such subject, consequently, the repealing clause of the act in question would be invalid if

the law were held unconstitutional.

CLAIM FOR COAL IS for NECESSARIES.

A claim for coal used for domestic purposes is within the term "necessaries," as used in Sec. 6489, Rev. Stat., authorizing attachment in such cases.

4. PRESUMPTION that Coal was for Domestic Purposes.

Where the affidavit for attachment states that the claim was for coal sold and delivered, and also states that it was for necessaries, and no statement, affidavit or finding appears denying the same or in contradiction thereof, judgment will not be reversed upon the statement of counsel to the court on review that the coal was for fuel for a boiler belonging to the equipment of an oil lease. Unless it otherwise appears in the record, it will be presumed that the coal was furnished for domestic purposes.

5. DISCHARGE OF ATTACHMENT-NO PRESUMPTION OF FRAUD, ETC.

The mere fact that an attachment before a justice of the peace was voluntarily discharged on motion of the plaintiff does not authorize a reviewing court to assume that the order was obtained fraudulently or not in good faith and that the affidavit was insufficient and untrue, so as to deprive the justice of jurisdiction to proceed to judgment therein.

6. JURISDICTION OF JUSTICES IN ATTACHMENT.

Under paragraph 7, Sec. 853, Rev. Stat., where, in a civil action before a justice of the peace, brought in the county but not in the township of the defendant's residence, the summons is accompanied by an order of attachment sued out and issued in good faith upon any ground authorizing an attachment against a resident of the county, and the summons is duly served, such justice thereby obtains jurisdiction over the person of the defendant, and may proceed to personal judgment against him, though no property is seized or held under the attachment.

HEARD ON Error.

T. W. Brake and J. G. Adams, for plaintiff in error.

Geo. B. Orwig, for defendant in error.

PARKER, J.

Defendants in error, the Bingham Bros., on November 24, 1900, instituted a suit against Edward V. Collins before William R. Leflet, a ustice of the peace in and for Washington township, in Lucas county, Ohio. At the same time he filed an affidavit for attachment, in which he stated, amongst other things, that his claim was for coal sold and delivered to the defendant, and that it was for necessaries. Under Sec. 5489, Rev. Stat., as amended on April 26, 1898, 93 O. L. 316, the fact that the claim sued on is for necessaries is made a ground of attachment. An order of attachment was issued with the summons, and both were duly served upon the defendant and property was seized.

Subsequently the defendant came into court, and by his affidavit made it appear that he was a resident of Port Lawrence township, in Lucas county, and he contended that because of that fact the attachment had been wrongfully obtained and issued; that the justice of the peace, under the law, had no jurisdiction to issue an attachment against a resident of another township of the same county on the simple ground

Collins v. Bingham Brothers.

that the claim was for necessaries; that he had no right to exercise jurisdiction in the case; and the defendant asked that the attachment be discharged, and the suit dismissed.

It appears that when the matter came up for hearing the plaintiff voluntarily abandoned his attachment, and on his own motion the attachment was discharged; but the justice of the peace proceeded with the case, and on the day set for the hearing, the claim being properly established by the plaintiff, judgment went against the defendant. obtain a reversal of that judgment the defendant, Edward V. Collins, filed a petition in error in the court of common pleas of this county. That court affirmed the judgment of the justice; and to obtain a reversal of that judgment as well as that of the justice of the peace, this proceeding in error is brought here.

The contention of the plaintiff in error that the justice of the peace was without jurisdiction in the premises is based upon the claim that the section of the statute purporting to give him jurisdiction and authority in such cases, to-wit: Sec. 583, Rev. Stat., is unconstitutional and void, and this is urged upon the ground that it is legislation of a general nature; that the subject matter is general, but the law is in fact special in its application because the jurisdiction to issue attachment in such cases is not conferred upon all justices of the peace of the state by the section.

The last amendment of the section is found in 93 Ohio Laws, 146, in an act which was passed upon April 19, 1898, and which amends not only Sec. 583, but also Secs. 582 and 584, Rev. Stat. Section 583, Rev, Stat., as amended, reads:

"Justices of the peace within and coextensive with their respective counties shall have jurisdiction and authority:

"1. To administer an oath, authorized or required by law to be administered.”

Then follows several other paragraphs, numbered consecutively, down to 7, which reads:

"To issue attachments and proceed against the goods and effects of debtors in certain cases, except in counties containing a city of the second grade of the first class, or of the first grade, second class, the jurisdiction and authority in such cases is coextensive only with the township for which the justice was elected, but when said justice has jurisdiction of the defendant because he resides in the township for which said justice was elected or otherwise as provided in Sec. 584, Rev. Stat., the jurisdiction of the justice in attachment shall be coextensive with the county."

The exception is of counties containing the cities of Cleveland and Columbus, i. e., Franklin and Cuyahoga counties. It is said that since this provision authorizing an attachment to issue in cases like the one at bar may be applied to but eighty-six of the eighty-eight counties of the state, the legislation has a special character.

It is a rule constantly observed by the courts that they will not consider or pass upon the constitutionality of laws unless it becomes necessary to do so in the decision of cases before them. We do not find it necessary to pass upon this question presented here for argument, for this reason: As I have said, this act of April 19, 1898, provides for the amendment of Secs. 582, 583, and 584, Rev. Stat. It re-enacts them in amended form, and repeals the original sections of those numbers theretofore found in the Revised Statutes of Ohio. If we should hold this section to be unconstitutional, we must, under well settled rules, hold that the